Blasphemy  and  free  speech 


toy 

'Pfek^o^pre  Shroeder. 


•^— ^ 


yi^C^^ 


":   ■^gy>.--rt.;g>^'* 


LASPHEMY  AISTD 
FREE  SPEECH 

Being  Sample  Portions  of  An  Argument  Which  a 

CONNECTICUT  JUDGE 
REFUSED  TO  READ 

^rinted  to  Promote  the  Repeal  of  Blasphemy  Laws, 


THEODORE  SCHROEDER 


14   WEST   TWELFTH   ST. 

NEW  YORK  CITY 


CONSTITUTIONAL  FREE  SPEECH 
DEFINED  'AND  DEFENDED 

Will  be  the  Title  of  a  Book  Containing  the 

Complete  Argument  with  a  Review 

of  the  Judicial  Action  Thereon, 


FREE  SPEECH  LEAGUE 

56  East  59th  St.,  N,  Y.  Crry, 

1918 


Introduction 

The  following  pages  present  parts  of  an  argument  which  Judge  F.  M. 
Peasley  refused  to  read,  and  yet  overruled.  Thus  the  constitutional  ques- 
tions are  settled  so  far  as  his  court  is  concerned.  That  decision  is  now  a 
legitimate  subject  for  public  discussion,  and  is  of  great  public  importance. 

I  am  aware  that  the  Judge's  refusal  to  read  most  of  my  argument  carries 
the  humiliating  implication  of  my  intellectual  bankruptcy.  However,  I  am 
prideless  and  shameless  enough  actually  to  print  the  discrediting  evidence 
of  my  inferiority.  Even  this  has  its  compensations.  I  know  that  in  so  far 
as  my  humiliation  is  merited,  it  becomes  the  means  and  the  measure  of  my 
contribution  to  the  judge's  exaltation. 

By  a  very  elaborate  and  unprecedented  study  of  the  historical  issues 
of  religious  liberty,  I  foolishly  hoped  to  promote  a  more  i"efined  sense  of 
justice  and  a  clarified  view  of  constitutional  liberty  and  democracy.  The 
Judge  saw  my  futility  even  before  reading  my  discussion.  This,  too,  has 
ifs  compensations.  Therefrom  we  may  learn  that  judicial  dignity  can  be 
maintained  by  politely  ignoring  the  unconscious  triflers,  like  myself;  that 
judicial  fair  plaj'  is  best  eulu'^iced  by  refusing  to  read  and  answer  such 
arguments  s.s  this  one;  also,  that  the  superiority  of  the  judicial  intellect  is 
best  vindicated  by  silently  rebuking  such  dullards-  as  myself,  when  we  pre- 
sume to  assist  and  to  enlighten  the  court.  It  was  Judge  Peasley's  right 
and  duty  to  decide  that  this  method  is  the  more  intelligent. 

NOW  I  APPEAL  TO  THE  PEOPLE  AND  TO  THE  LEGISLA- 
TURE FOR  A  HEARING  AND  FOR  THE  REPEAL  OF  THE  BLAS- 
PHEMY STATUTE. 

THEODORE  SCHROEDER. 

NEW  YORK  CITY. 


BMt  of  (Entm^rtirut 

District  Court  of  Waterbury. 


State    of    Connecticut 
against 
Michael  X.  Mockus 


ARGUMENT   ON   BEHALF   OF   THE   ACCUSED    IN 
SUPPORT  OF  A  DEMURRER  TO  THE  INFORMA- 
TION CHARGING  HIM  WITH  THE 
CRIME  OF  BLASPHEMY. 

History  of  the  Case. 

The  Defendant,  Michael  X.  Mockus,  is  a  Free  Thought 
lecturer  of  Detroit,  Michigan.  He  came  to  Waterbury, 
Conn.,  pursuant  to  an  engagement  to  deliver  a  series  of 
lectures  in  the  Lithuanian  language  to  an  incorporated 
Lithuanian  Free  Thought  Association.  In  his  third  lec- 
ture some  phrases  were  used  which,  dissociated  from  their 
context,  are  alleged  to  be  blasphemous,  under  a  statute 
passed  in  1642.  He  was  arrested,  tried  in  the  City  Court 
of  Waterbury,  and  found  guilty.  A  penalty  of  ten  days 
in  jail  was  inflicted.  An  appeal  was  taken  to  the  District 
Court.  There  a  trial  resulted  in  a  disagreement  of  the 
jury.  A  re-trial  was  set  for  December  6,  1916.  At  that 
time  permission  was  given  to  re-argue  a  demurrer.  At 
the  conclusion  of  a  lengthy  argument,  by  general  consent, 
further  proceedings  in  the  case  were  continued  for  the 
term,  during  which  time  the  argument  in  support  of  the 
demurrer  was  to  be  extended  in  writing,  and  submitted  to 
the  Court.  The  following  pages  present  the  oral  argu- 
ment, corrected  and  revised. 

13 


I. 

STATEMENT  OF  THE  CASE. 

The  Defendant  is  charged  in  the  language  of  the  Con- 
necticut statute  with  having  blasphemed  against  God,  the 
Christian  religion  and  the  Holy  Scriptures.  The  demurrer 
is  general,  and  raises  the  question  of  the  sufficiency  of 
the  complaint  to  state  facts  constituting  a  crime.  Under 
this  head  the  contention  which  is  of  most  general  and  of 
the  greatest  importance  is  that  the  Connecticut  statute 
against  blasphemy  is  unconstitutional  under  several  pro- 
visions of  both  State  and  National  constitutions. 

Statutes  Involved. 

Sec.  1323,  General  Statutes  of  Connecticut:  "Every 
person  who  shall  blaspheme  against  God,  either  of  the 
persons  of  the  Holy  Trinity,  the  Christian  religion,  or  the 
Holy  Scriptures,  shall  be  fined  not  more  than  one  hundred 
dollars,  and  imprisoned  in  a  jail  not  more  than  one  year, 
and  may  also  be  bound  to  his  good  behavior." — A.  D.  1642- 
1821,  Kev.  1888,  Sec.  1535. 

Connecticut  Constitution_,  Declaration  of  Eights,  1818. 

Sec.  1.  "That  all  men  when  they  form  a  social  compact, 
are  equal  in  rights;  and  that  no  man  or  set  of  men  are 
entitled  to  exclusive  public  emoluments  or  privileges  from 
the  community." 

Sec.  3.  "The  exercise  and  enjoyment  of  religious  pro- 
fession and  worship  without  discrimination,  shall  forever 
be  free  to  all  persons  in  this  state,  provided  that  the  right 
hereby  declared  and  established,  shall  not  be  so  construed 
as  to  excuse  acts  of  licentiousness,  or  to  justify  practices 
inconsistent  with  the  peace  and  safety  of  the  state." 

Sec.  4.  "No  preference  shall  be  given  by  law  to  any 
Christian  sect  or  mode  of  worship." 

Sec.  5.  "Every  citizen  may  freely  speak,  write  and  pub- 
lish his  sentiments  on  all  subjects,  being  responsible  for 
the  abuse  of  that  liberty." 

14 


STATEMENT  OF  THE  CASE.  15 

Sec.  6.  "No  law  shall  ever  be  passed  to  curtail  or  re- 
strain the  liberty  of  speech  or  of  the  press." 

Sec.  9.  "In  all  criminal  prosecutions  the  accused  shall 
have  the  right  *  *  *  to  demand  the  nature  and  cause  of 
the  accusation;  *  ♦  *  He  shall  not  *  *  *  be  deprived 
of  life,  liberty  or  property  but  by  due  course  of  law." 

Sec.  12.  "All  courts  shall  be  open,  and  every  person, 
for  an  injury  done  to  him  in  his  person,  property,  or  repu- 
tation, shall  have  remedy  by  due  course  of  law  and  right 
and  justice,  administered  without  sale,  denial  or  delay." 

Sec.  16.  "The  citizens  have  a  right,  in  a  peaceable  man- 
ner, to  assemble  for  their  common  good,  and  to  apply  to 
those  invested  with  the  powers  of  government,  for  redress 
of  grievances  or  other  proper  purposes,  by  petition, 
address  or  remonstrance." 

U.  S.  Constitution. 

Amend.  Art.  1.  "Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the  free  exer- 
cise thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press;  or  the  right  of  the  people  peaceably  to  assemble, 
and  to  petition  the  government  for  a  redress  of  grievances." 

Article  5.  *  *  *  "Nor  shall  any  person  *  *  *  be 
deprived  of  life,  liberty  or  property,  without  due  process 
of  law."     *    *    * 

Article  6.  *  *  *  "In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  *  *  *  to  be  informed  of 
the  nature  and  cause  of  the  accusation." 

Article  14.  *  *  *  "No  state  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States,  nor  shall  any  State  deprive 
any  person  of  life,  liberty  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

The  constitutional  problems  arrange  themselves  quite 
naturally  into  three  groups: 

The  first  group  arises  from  the  abridgment  of  freedom 


16  BLASPHEMY. 


of  speech  and  religious  liberty,  thus  violating  several  con- 
stitutional provisions. 

The  second  group  arises  from  the  inequalities  created 
by  this  law,  and  makes  it  a  violation  of  "due  process  of 
law,"  and  other  guarantees  of  equal  liberty,  under  both 
State  and  Federal  Constitutions. 

The  third  group  arises  from  the  uncertainty  of  the 
criteria  of  guilt  under  the  blasphemy  statute,  which  makes 
it  a  violation  of  the  right  to  "due  process  of  law"  and  of 
the  right  to  know  the  nature  of  the  accusation  against  the 
accused,  under  both  State  and  Federal  Constitutions. 

General  Suggestions. 

There  can  be  no  religious  liberty,  in  the  sense  of  a  com- 
plete separation  of  church  and  state,  which  does  not  in- 
clude freedom  of  speech  for  religious  subjects.  Likewise, 
there  cannot  be  general  freedom  of  speech  without  includ- 
ing the  whole  of  religious  mental  freedom.  Of  course, 
religious  freedom  includes  more  than  religious  free  speech 
as,  for  example,  exemption  from  taxation  for  religious 
purposes.  Likewise,  free  speech  includes  intellectual  lib- 
erty upon  other  subjects  besides  religion.  However,  so 
far  as  the  blasphemy  statutes  are  concerned,  it  makes  no 
difference  whether,  considered  under  one  or  the  other  of 
these  constitutional  provisions,  the  line  of  demarcation 
between  liberty  and  its  unconstitutional  abridgment  is  the 
same.  This  aspect  of  the  question  will  be  presented  from 
the  viewpoint  that,  so  far  as  concerns  the  blasphemy 
statute,  three  different  constitutional  phrases  are  but  dif- 
ferent ways  of  expressing  the  same  idea,  and  accomplish- 
ing the  same  end. 

It  is,  of  course,  known  that  judicial  decisions  sanction 
the  view  that  the  earlier  amendments  to  the  Federal  Con- 
stitution are  limitations  only  upon  the  powers  of  the  Fed- 
eral Government  and  not  limitations  upon  State  action. 
This  conclusion  undoubtedly  presents  the  whole  truth, 
under  the  conditions  existing  prior  to  the  adoption  of  the 
fourteenth  amendment.  Even  after  that  amendment,  if 
we  consider  the  prior  amendments  as  dissociated  from  it. 


STATEMENT  OF  THE  CASE.  17 

the  same  result  will  be  asserted.  A  different  situation  is 
presented  if  we  undertake  a  synthetic  construction  of  the 
first  and  fourteenth  amendments. 

Then  we  are  compelled  to  ask  ourselves:  what  "lib- 
erties" and  "equal  protection  of  the  laws"  are  the  states 
prohibited  from  invading  by  the  fourteenth  amendment 
Obviously  one  cannot  determine  what  is  that  equal  re- 
ligious and  intellectual  freedom,  guaranteed  by  the  four- 
teenth amendment  of  the  Federal  Constitution,  without 
at  the  same  time  construing  the  first  amendment.  In 
other  words  the  fourteenth  amendment  protects  against 
State  infringement  all  that  "liberty"  which  was  of  suffi- 
cient importance  to  have  been  previously  protected  against 
congressional  encroachments.  Upon  such  reasoning  it 
will  be  claimed  that  the  Federal  amendments  are  a  limi- 
tation upon  State  powers.  Thus  the  "liberty"  which  by 
the  fourteenth  amendment  is  protected  against  State  ac- 
tion, necessarily  includes  all  those  liberties  theretofore 
inadequately  protected,  and  now  more  fully  protected  even 
against  State  action.  This  is  accomplished  by  at  least  a 
limited  incorporation  of  the  liberties  of  the  first  amend- 
ment within  the  "liberty"  of  the  fourteenth  amenameu-. 
It  is  believed  that  this  point  has  never  yet  been  decided 
by  any  court.  In  consequence  of  this  it  is  now  claimed 
that  the  Connecticut  blasphemy  statute  violate ^  also  the 
first  and  sixth  amendments  as  well  as  the  fourteenth 
amendment  to  the  Federal  Constitution. 

Hereinafter  it  will  be  also  contended  that  the  consti- 
tutional guarantees  for  equality,  for  religious  liberty,  and 
for  freedom  of  speech  were  not  limited  in  their  operation 
to  those  who  possess  any  particular  degree  of  culture,  or 
a  polite  and  approved  vocabulary,  or  an  alluring  oratorical 
and  literary  style,  or  for  the  protection  of  persons  ex- 
pressing only  "safe  and  sane"  x)opular  opinions.  On  the 
contrary,  it  will  be  asserted  that  these  constitutional  lib- 
erties were  designed  to  limit  the  powers  of  government, 
and  to  protect  human  rights,  not  merely  the  rights  of  those 
possessed  of  a  clever  technique  for  insinuating  heresy  or 
agnosticism  with  a  minimum  of  offence.  Equality,  relig- 
ious liberty,  and  free  speech  being  human  rights,  in  the 


18  BLASPHEMY. 


most  fundamental  sense  of  a  democracy,  the  defendant 
and  every  one  else,  discussing  religious  subjects,  must  be 
allowed  to  express  themselves  with  impunity  in  such 
vocabulary  as  they  possess,  within  the  limits  of  doing 
actual  and  material  injury.  In  this  matter  of  constitu- 
tional law  we  are  dealing  with  the  jxjwers  of  government 
rather  than  with  the  opinions  or  education  of  any  particu- 
lar person. 


XVIII. 

A  REVIEW  OF  BLASPHEMY 
PROSECUTIONS. 

Heretofore,  we  have  reproduced  in  chronological  order 
all  that  was  found  concerning  prosecutions  for  religious 
offenses.  How  will  we  now  treat  this  material?  In  legal 
literature  I  have  never  seen  a  discussion  of  intellectual 
method.  Therefore  it  may  help  to  formulate  a  brief 
statement  which  will  make  us  more  conscious  of  our 
methods  and  aims  as  we  proceed.  Let  us  then  first  pro- 
claim these  methods  and  aims  and  after  that  see  what 
general  meaning  we  can  thus  extract  from  the  record. 

A  Case-Lawyer's  Method. 

If  our  dominant  desires  are  functioning  at  the  level  of 
a  mere  case-lawyer  who  is  more  or  less  blind,  we  may  act 
even  from  an  unconscious  compulsion,  just  as  though  we 
consciously  wished  to  perpetuate  former  religious  persecu- 
tion, in  whole  or  in  part.  Such  persons  will  not  seek  nor 
will  they  consider  the  larger  issues  of  intellectual  freedom 
that  were  then  in  process  of  formulation  and  of  being 
fought  out.  Therefore  they  will  not  discover  the  bearing 
of  persecutory  precedents  upon  constitutional  construc- 
tions. From  the  necessity  of  their  limitations  these  per- 
sons will  study  the  precedents  with  a  dominant  impulse  as 
if  to  discover  in  them  meanings  and  justifications  for  the 
further  infliction  of  pains  for  mere  mental  offenses.  Such 
predisposition  tends  to  the  ignoring  of  the  relation  of  these 
cases  to  the  larger  principles  involved,  or  their  potency  as 
an  exhibition  of  the  evil  sought  to  be  remedied  by  our  con- 
stitutional guarantees.  By  more  or  less  crude  analogy,  the 
ancient  tyrannous  precedents  will  then  be  directly  applied 
to  present-day  facts,  without  the  intervention  of  principles 
as  these  might  be  understood  at  higher  evolutionary 
levels.  Thus  the  precedents  and  our  constitutions  can  be 
made  to  satisfy  any  present  judicial  lust  for  power  over 
opinions.  If  we  recognize  any  distinction  between  a  mere 
case-lawyer  and  an  intellectually  m.ature  jurist,  the  test  for 

350 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  351 

this  discrimination  must  be  chiefly  found  in  their  differen- 
ces as  to  intellectual  processes.  Let  us  then  proceed  with 
a  statement  of  the  more  mature  mental  procedure  in  deal- 
ing with  legal  precedents. 

The  Jurist's  Method. 

To  make  the  record  of  cases  more  useful  to  the  prob- 
lems of  statutory  and  constitutional  construction,  those 
who  use  more  mature  intellectual  methods  will  extract 
from  those  cases  statements  of  truths,  to  be  perfected  if 
possible  and  then  deductively  applied  to  each  present 
problem.  For  this  purpose  we  need  to  analyze  our  cases, 
first,  in  order  to  abstract  from  each  the  essential  factors 
which  make  it  like  unto  other  cases  as  to  the  possible  gen- 
eral rules  of  law  that  may  be  discovered.  Next  we  may 
reorganize  this  case-material  in  new  classifications  accord- 
ing to  the  similarity  of  the  suppressed  ideas  with  the  hope 
of  uncovering  more  completely  the  pernicious  possibilities, 
and  then  arrange  them  all  under  general  classifications. 
In  making  this  rearrangement  we  will  neglect  the  rela- 
tively immature  mental  processes  which  deal  principally 
with  concrete  and  obscure  analogies  between  that  past  case 
and  this  present  one.  Thus  we  may  arrive  at  the  more 
mature  intellectual  methods  wliich  impel  us  to  deal  more 
intelligently  and  thoroughly  with  abstract  relations,  and 
with  generalizations  inductively  derived.  Then  we  may 
also  formulate  the  law,  as  to  blasphemy  and  as  to  the 
meaning  of  free  speech,  and  formulate  it  in  the  sense  of 
"law"  as  rules  of  conduct  that  are  general  in  form  and  yet 
so  precise  as  to  furnish  certainty  and  uniformity  in  the 
criteria  of  conduct.  Without  such  certainty  in  the  criteria 
of  right  and  of  crime,  we  inevitably  preclude  the  important 
achievement  of  even  approximate  equality  before  the  law. 

Thus  We  can  assimilate  and  integrate  the  concrete  as- 
pects of  blasphemy,  into  larger  generalizations  which  will 
present  its  true  historic  meaning  in  the  form  of  general 
principles,  or  as  general  criteria  of  blasphemy.  At  the 
same  time  these  principles  carried  to  tlieir  logical  con- 
clusion should  make  even  more  plain  the  inherent  evil 
factor  which  the  dissenters  opposed  and  which  our  con- 
stitutions sought  to  destroy  forever.     Thus  we  may  come 


332  BLASPHEMY. 


to  understand  more  clearly  the  contrary  principle,  as  a 
rule  of  action  made  obligatory  by  our  constitutions.  When 
thus  we  come  to  see  the  conflict  of  principle  between 
blasphemy  prosecutions  and  constitutional,  religious  and 
Intellectual  liberty  we  may  achieve  also  some  general  cri- 
teria for  determining  the  existence  and  meaning  of  the 
latter.  With  this  done,  we  will  have  achieved  a  jurist's 
conception  of  constitutional  law.  The  exactness  and 
thoroughness  with  which  we  adhere  to  this  more  scientific 
method,  that  is  to  say :  the  emphasis  which  we  place  upon 
it,  will  depend  upon  the  development  and  the  temperament 
of  each  individual. 

It  is  the  choice  and  the  use  w^e  make  of  precedents  that 
will  reveal  our  unconscious  as  well  as  conscious  motives 
and  our  intellectual  methods,  and  these  in  combination 
will  determine  the  result.  Thus  do  we  automatically 
classify  our  intellectual  status  as  we  must,  and  justify  our- 
selves as  best  we  can.  Those  with  an  adequate  evolu- 
tionary concept  of  desire  and  of  mental  processes  will  see 
in  us  and  understand  that  which  others  fail  to  grasp.  So 
do  we  quite  unconsciously  classify  ourselves,  as  near  to  a 
most  blind  case-lawyer  or  to  a  real  jurist.  In  the  higher 
developmental  stage  of  desire  we  function  above  the  petty 
conflict  'Of  unconscious  and  narrowly  conditioned  per- 
sonal tendency.  Then  we  will  seek  a  relatively  impersonal 
and  more  synthetic  view  of  the  historic  and  personal  con- 
flicts and  through  this  we  may  be  impelled  to  consciously 
promote  the  process  of  democratization,  by  means  of  a  like 
promotion  of  its  indispensible  intellectual  hospitality. 

Criteria  of  Blasphemy. 

Let  us  now  see  if  we  can  abstract  from  the  blasphemy 
cases  a  few  general  truths  about  the  motives  which  pro- 
duced blasphemy  laws,  and  the  criteria  of  guilt  under 
them.  Then,  perhaps,  we  can  acquire  a  better  view  of 
such  laws,  and  see  them  as  the  very  evils  which  our 
constitutions  were  designed  to  destroy,  and  so  bring  our- 
selves to  a  better  understanding  of  the  how  and  why  of 
that  design. 

A  careful  reading  of  the  blasphemy  cases  makes  it 
plain   that   at   no   time   before   our   revolution   did    the 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  353 

blasphemous  character  of  an  idea  depend  upon  the  rhetori- 
cal form  or  the  politeness  of  literary  style.  On  its  politi- 
cal side  as  "sedition"  the  objection  to  religious  heresy  was 
that  it  attacked  the  privileges  and  prerogatives  that  were 
claimed  as  a  matter  of  divine  right,  founded  on  Christian 
"orthodoxy."  Blasphemy  as  such  was  conditioned  on  the 
meaning  of  one's  utterance,  in  comparison  with  and  as  a 
contradiction  of  orthodox  doctrine.  Neither  did  blas- 
phemy then  depend  upon  the  judge's  or  the  jury's  opinion 
of  the  psychologic  tendency  to  produce  a  disturbance  of 
the  civil  peace.  A  hypothetical  and  imaginary  tendency 
to  "endanger  the  eternal  soul"  of  others  was  the  justifica- 
tion for  such  legislation,  but  even  this  was  never  made  the 
criteria  of  guilt.  Whether  any  utterance  came  within  the 
scope  of  the  blasphemy  statute  was  a  pure  question  of  law 
determinable  only  by  the  judges.  It  was  decided  by  them 
wholly  with  reference  to  its  contradiction  of  essential 
orthodox  doctrine.  The  judge  was  presumed  to  know  what 
was  orthodox  just  as  he  was  presumed  to  know  what  waa 
the  law,  for  orthodoxy  was  the  law. 

Under  our  constitutional  guarantees  of  a  separation  of 
church  and  state  and  for  religious  liberty,  the  reason  for 
blasphemy  laws  utterly  fail.  Now  our  courts  cannot  de- 
termine what  is  orthodox  religious  doctrine,  because  its 
existence  in  the  legal  sense  has  been  prohibited.  Neither 
can  it  protect  the  legalized  injustice  or  vested  wrongs  of 
the  privileged  classes,  or  those  claiming  to  be  such.  A 
secular  government  can  have  no  concern  with  the  post 
mortem  salvation  of  souls.  For  all  those  who  have  the 
desire  and  the  capacity  to  see  these  truths  the  constitution 
will  therefore  be  held  to  have  repealed  the  common  law 
as  to  blasphemy.  Those  whose  desires  and  intellects  func- 
tion on  a  different  evolutionary  level  may  reach  a  contrary 
conclusion.  So  these  latter  will  retard  the  growth  of 
democracy  and  of  liberty,  as  the  German  Kaiser  and  the 
Pope  are  doing.  This  is  all  the  more  evident  when  we 
further  consider  the  nature  and  source  of  blasphemy  laws, 
as  being  but  the  parliamentary  ratification  of  the  canon 
law. 

It  also  appears  from  such  a  careful  reading  of  the  cases 


354  BLASPHEMY. 


based  upon  religious  offenses  that  all  of  them  were  but 
special  instances  of  a  violation  of  the  canon  law  against 
blasphemy.  Again  the  reason  for  this  is  obviously  found 
in  the  fact  that  all  government  was  then  supposed  to  de- 
rive its  just  powers  from  God  and  not  as  in  America  from 
the  consent  of  the  governed.  Thus  the  parliamentary 
adoption  of  the  canon-law  was  but  a  declaratory  confinna- 
tion  of  what  the  then  English  theory  of  government  already 
implied.  The  parliamentary  approval  wrought  only  the 
change  of  eliminating  the  papal  authority,  not  the  divine 
authority  in  politics. 

Canon-Law  and  Common-Law. 

"Besides  the  papal  institutions,  there  were  many  decrees 
of  synods  or  ecclesiastical  councils,  especially  in  England, 
which  may  be  ranked  as  parts  of  the  canon  law.  At  the 
dawn  of  the  reformation  (in  the  time  of  Henry  VIII)  an 
act  passed,  for  the  revision  of  the  canon  law,  and  providing 
that  until  that  revision  was  made,  all  canons,  constitu- 
tions, ordinances,  and  synodols  provincial,  then  already 
made,  and  not  repugnant  to  the  law  of  the  land  or  the 
hinges  prerogative,  should  still  be  used  and  executed.  No 
such  revision  has  been  made.  Clerical  canons,  made  since 
that  time,  are  no  authority  as  to  the  laity,  unless  confirmed 
by  act  of  parliament."^ 

Just  here  it  may  be  useful  to  restate  the  three  catagories 
of  the  canon-law  definition  of  blasphemy,  and  to  attempt 
some  elucidating  comment  thereon.  Blasphemy  consisted 
in  this :  "First,  when  there  is  attributed  to  God  that  which 
is  not  proper  to  God,  and  second,  when  there  is  taken  away 
from  God  that  which  is  proper  to  God.  To  these  two  a 
third  should  be  added,  according  to  St.  Thomas  Aquinas 
that  when  there  is  attributed  to  the  Creature,  that  which 
is  proper  to  the  Creator  alone"  (p.  166). 

The  first  two  categories  obviously  are  distinguished 
mainly  according  to  the  form  of  the  blasphemous  state- 
ment. If  one  says  that  God  is  a  purposeful  divine  immi- 
nence in  the  universe,  he  denies  the  ordinary    conception 

*  Sullivan,  William.  Historical  causes  and  effects,  p.  424;  citing, 
Blackstone's  Commentaries,  vol.  1,  p.  74.  [Blackstone,  v.  1,  pp. 
82-83.] 


A  REVIEW  OF  T'.LAS:PHEMY  PROSECUTIONS.  355 

of  the  divinity  of  Jesus,  and  therefore  denies  the  trinity. 
At  the  same  time  such  a  statement  attributes  to  God  that 
which  does  not  belong  to  the  orthodox  conception  of  him. 
Likewise,  if  I  ascribe  to  any  man  the  qualities  or  powers 
which  orthodoxy  credits  God  with  monopolizing,  then  I 
am  by  necessary  implication  denying  to  God  some  quality 
of  exclusive  super-humanness  which  orthodoxy  considers 
proper  only  to  God.  We  must  therefore  conclude  that  all 
blasphemy  is  a  mere  denial  expressed  or  implied,  of  any- 
thing which  for  the  moment  is  deemed  essential  to  orthodox 
religion,  or  to  its  political  machinery,  and  that  orthodoxy 
can  have  logical  existence  in  the  legal  sense  only  when 
church  and  state  are  one. 

When  our  constitutions  disestablished  all  religion  it 
was  undoubtedly  designed  to  include  a  repeal  of  the  en- 
actment which  had  made  the  canon-law  a  part  of  the  com- 
mon-law. If  not  this  then  the  constitutional  words  have 
no  meaning.  Only  through  the  union  of  church  and  state 
did  the  canon-law  supply  the  reason  and  the  essense  of  the 
laws  against  blasphemy.  By  destroying  and  prohibiting  the 
union  of  church  and  state  and  by  guaranteeing  freedom  of 
speech,  in  the  clearest  general  terms  that  are  possible,  our 
constitutions  prohibited  blasphemy  prosecutions. 

From  this  point  of  view  it  can  be  said  that  our  problem 
is  to  decide  which  will  now  prevail,  canon-law  or  secular 
constitutions?  Only  by  immature  intellectual  methods 
and  their  inadequate  sophistries  can  the  former  be  upheld 
or  the  two  reconciled. 

Review  of  Adjudicated  Cases. 
A  careful  reading  of  the  cases  reported  as  crimes  against 
religion  makes  it  clear  that  even  though  the  judicial  label 
was  "sedition"  every  case  presented  a  violation  of  the 
canon-law  against  blasphemy.  To  deny  the  divine  right 
of  the  king  was,  of  course,  a  denial  of  an  orthodox  essen- 
tial. If  we  co-ordinate  the  judicial  cases  and  the  canon- 
law  another  fact  becomes  apparent,  namely:  All  three 
classifications  of  the  canon-law  as  to  blasphemy  and  all 
the  adjudicated  cases  of  which  any  record  is  found,  con- 
sist of  the  one  essence,  which  is  a  denial,  directly  or  by  in- 
direct necessary  implication,  of  something  which  at  the 


356  BLASPHEMY. 


moment  was  considered  essential  to  tlie  fabric  of  orthodox 
theologic  theory.  Again,  the  essence  of  legalized  orthodoxy 
V'aried  according  to  the  politico-religious  fashion. 

As  we  contemplate  these  facts  we  achieve  a  new  under- 
standing of  the  essential  content  of  the  English  judicial 
mind  when  it  expressed  the  formula  that:  "Christianity 
is  part  of  the  law  itself."^  How  else  could  a  king  or  a 
bishop  rule  by  divine  right?  Furthermore,  the  canon-law 
had  been  expressly  enacted  as  part  of  statutory  law.^  The 
contemplation  of  these  facts  also  give  us  a  new  valuation 
of  the  "intelligence"  of  those  American  judges  who  under 
our  secular  constitutions  have  approvingly  repeated  that 
statement  about  Christianity  being  part  of  the  law  itself.* 
Is  it  not  merely  that  undemocratic  desires  impel  some 
judges  to  an  unintelligent  parroting  of  a  formula  that 
gives  emotional  satisfaction  to  an  immature  lust  for  power  ?- 
We  can  leave  the  answer  to  this  psychologic  problem  for 
the  psychologic  specialist  and  for  another  time. 

DlVINE-RlGHT-RULE  AND  BLASPHEMY. 

Before  the  reformation  the  King  ruled  by  divine  right 
through  the  mediation  of  the  Pope.  After  the  reformation 
Henry  VIII  ruled  by  divine  right  without  any  interme- 
diary. Within  their  jurisdiction,  the  anglican  bishops 
also  ruled  by  divine  right,  and  exercised  even  penal  juris- 
diction, not  as  the  arm  of  the  king  or  in  the  name  of  the 
king,  but  in  their  own  proper  person  as  successors  of  the 
apostolic  fathers  of  the  church.^  The  logic  of  the  cases  is 
to  the  effect  that  Christianity  was  more  than  a  part  of  the 
law.  Christianity  was  the.supreme  and  more  fundamental 
part  of  the  law.  Blackstone  formulates  it  thus :  "Where 
the  former  determination  is  most  evidently  contrary  to 
reason,  [it  is  not  law]  much  more  if  it  be  contrary  to  divine 

•Taylor's  Case,   1  Ventris  293;  3  Kebble  607;  2  Strange   789.     See 
page  286  herein. 

*  Blackstone's  Commentaries,  v.  1,  pp.  74-82-83. 

*  State  V.  Chandler,  2  Del.  553-556. 

People  V.  Ruggles,  8  John  (N.  Y.),  290-294;  5  Am.  Dec.  335. 
Updegraph  v.  Com.,  11  Serg.  &  Randle  (Pa.),  394-401. 
But  for  modern  British  attitude  see :   Bowman  v.   Secular  Society, 
Ltd.    Law  Reports,  Appeal  Cases,  Part  IV  Aug.  1,  1917,  pp.  406-478. 

*  See.  Richard  Burton's  Case,  pp.  219-221  herein. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  357 

law.""^  The  orthodox  conception  of  divine  law  was,  there- 
fore, supreme  in  a  theocracy  which  came  down  from  God, 
in  much  the  same  sense  in  which  our  democratic  constitu- 
tions are  held  to  be  supreme  because  they  came  up  from 
out  of  the  people.  Under  these  circumstances,  of  course, 
"words  against  an  archbishop  are  words  against  the  gov- 
ernment."^ Since  the  bishops  also  ruled  by  divine  right 
it  might  equally  have  been  said  that  words  against  an  arch- 
bishop are  words  against  God.  To  deny  anything  orthodox 
in  religion  was  to  deny  the  very  foundation  upon  which 
the  government  claimed  to  rest.  It  was  therefore  optional 
whether  one  labeled  certain  utterances  as  blasphemy,  sedi- 
tion, or  treason.  That, is  the  inescapable  meaning  of  those 
cases  where  prosecution  followed  a  criticism  of  the  doc- 
trines of  the  bishops.^  However,  the  true  human  motive 
was  always  a  mere  matter  of  protecting  the  temporal  ad- 
vantages of  the  privileged,  though  the  pretense  was  to  pro- 
tect God  and  the  spiritual  advantage  for  the  soul. 

Assuming  Divine  Attributes. 

The  same  relation  to  the  advantages  of  the  privileged 
can  be  discovered  also  in  those  cases  where  the  blasphemy 
consisted  in  attributing  to  a  human  "that  which  is  proper 
to  the  Creator  alone." 

In  the  case  of  Abiezer  Coppe  (pp.  271-272)  his  book  was 
burned  as  blasphemous  because  he  assumed  to  himself  the 
divine  prerogative  of  issuing  a  final  divine  warning  to  pre- 
pare for  the  day  of  judgment.  Such  pretensions  obviously 
came  in  conflict  with  the  monopoly  of  the  bishops. 

James  Naylor  (p.  282)  allowed  himself  to  be  adored  as 
God  or  Christ,  claiming  to  be  a  spiritual  king  of  Israel 
having  power  over  the  enemies  of  Christ,  and  therefore  he 
was  adjudged  a  blasphemer.  Again  we  see  the  supreme 
authority  of  the  orthodox  church  being  questioned.  This 
was  in  effect  setting  up  a  claim  for  a  new  sovereign  of 
sovereigns. 

Lodowicks  Muggleton  (p.  292)  and  John  Reeve  between 

•  Blackstone's  Commentaries,  v.  1,  p.  70. 

'Mence  on  Libel,  p.  288-289.    edition  of  1823;  see  also:  Pocklington't 

Case,  p.  248  herein. 
•Legate,  p.  182;  Montagu,  p.  192;  Leighton,  p.  197-199;  Burton,  p. 

215-222,  Pocklington,  p.  238,  etc. 


358  BLASPHEMY. 


them  assumed  to  exercise  the  divine  power  to  damn  and  to 
bless.  Such  persons  also  were  obviously  threatening  to 
supercede  both  bishops  and  king. 

An  unnamed  member  of  the  Society  of  Love  (p.  295) 
claimed  familiar  communion  with  God,  assumed  the 
"sacred  attributes  of  God,  sometimes  gave  out  that  she  was 
the  Virgin  Mary  and  other  times  blasphemously  taking 
upon  herself  other  adorable  names  and  titles."  She  pre- 
sumed to  pronounce  damnation  and  salvation.  Here  again 
was  the  assertion  of  a  nearnees  to  God  beyond  that  which 
the  orthodox  clergy  were  claiming.  For  these  acts  she  was 
held  to  keep  the  i>eace,  doubtless  being  a  dangerous  or 
audacious  competitor  of  the  existing  aristocracy. 

Sussannah  Fowler  (p.  314),  another  demented  female, 
was  also  convicted  of  blasphemy  for  claiming  to  be  a  God 
and  to  possess  the  power  to  save  and  to  damn.  If  this  were 
tolerated  it  would  necessarily  endanger  the  bishops'  pre- 
eminence and  ultimately  their  "loaves  and  fishes." 

Jolm  Asgill  (pp.  319-322)  published  a  book  held  blas- 
phemous because  of  numerous  erroneous  and  harmless 
theories  by  which  he  sought  to  prove,  by  the  scriptures, 
that  man  may  be  translated  from  hence  into  eternal  life 
without  passing  through  death.  Here  again,  through  the 
medium  of  "misinterpreted"  holy  writ,  a  divine  quality 
was  ascribed  to  mere  liumans.  When  death  loses  its  ter- 
rors the  clergy  will  have  lost  the  keys  to  "eternal  life." 
Then  their  job  becomes  worthless  and  their  prerogatives 
will  vanish.  In  the  House  of  Commons  AsgilFs  book  was 
declared  "a  crime  higher  than  High  Treason." 

So  then,  on  its  human  side  as  a  matter  of  motive,  blas- 
phemy prosecutions  always  protected  temporal  privileges 
and  prerogatives,  such  as  are  inconsistent  with  some  pres- 
ent conceptions  of  democracy.  On  its  religious  side  blas- 
phemy dealt  with  "spiritual"  pretenses  and  soul-protection. 
All  these  religio-moralistic  pretenses  of  superhuman  origin 
were  mere  masks,  perhaps  unconsciously  but  actually  used, 
for  tlie  covert  protection  of  privileges  and  prerogatives. 
By  destroying  the  union  of  church  and  state  it  was  sought 
by  our  constitutions  to  destroy  this  religio-political  sup- 
port for  that  which  was  undemocratic. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  359 

Rule  Illustrated. 

From  the  foregoing  discussion  some  will  doubtless 
achieve  a  new  vision  and  it  is  hoped  a  clarified  vision,  for 
re-examining  the  prerevolutionar\^  judicial  attitude  to- 
ward blasphemy  as  that  was  then  formulated.  We  may 
profitably  quote  a  few  such  authorities  to  confirm  our  fore- 
going speculations.  Lord  Holt,  in  his  Law  of  Libels,^  under 
the  heading  of  "Offenses  against  religion,"  includes  this: 
"All  profane  scoffing  of  the  holy  Scripture,  or  exposing  any 
part  to  ridicule  and  contempt."^®  Hawkins  uses  precisely 
the  same  language  just  quoted  from  Holt. 

Having  now  clarified  our  mind  to  the  point  of  seeing  that 
a  denial  of  any  part  of  the  official  interpretation  of  Holy 
Scripture  or  of  the  Christian  religion  was  blasphemy,  let 
us  view  some  specific  doctrines  that  it  was  a  crime  to  deny. 
Thus  will  we  come  to  a  concrete  understanding  of  just  how 
this  blasphemy  statute  must  have  been  interpreted  in  1642 
by  those  who  enacted  it,  and  how  it  must  still  be  interpreted 
If  it  is  to  be  enforced.  The  court  cannot  amend  the  statute 
by  new  interpretations  which  alter  the  criteria  of  guilt.  If 
the  statute  as  interpreted  prior  to  1818  is  unconstitutional, 
then  it  cannot  now  be  made  to  harmonize  with  the  consti- 
tution by  a  judicial  amendment  of  the  statute.  All  English 
and  American  statutes  about  blasphemy  were  but  declara- 
tory of  the  common  law,  and  that  in  turn  was  merely 
declaratory  of  the  canon-law. 

"The  statute  law  has  likewise  marked  out  certain  offenses 
against  Christianity  in  which  it  is  merely  declaratory  of 
the  common  law.  *  *  *  Reviling  the  sacrament  of  the 
Lord's  Supper  with  contemptuous  words,  etc.,  for  which  by 
1  Edw.  VI,  c.  1  (which  was  repealed  by  1  Mary,  c.  2,  and 
revived  by  1  Eliz.,  c.  1  [1558-1603] )  the  offender  shall  be 
imprisoned,  fined  and  ransomed."^^ 

Crime  to  Deny  Trinity. 
Lord  Holt  presents  the  following  view  of  the  law  in  re- 
lation to  the  doctrine  of  the  Trinity.    His  word  "profanely" 

*  P.  65,  of  second  edition,  1816. 

"Hawkin's  Pleas  of  the  Crown  (seventh  edition,  1795),  v.  1,  chap.  5, 

p.  12.     See  also  quotations  in  chap.  12,  herein. 
"Holt,  on  Libel,  p.  65,  of  second  edition,  citing:  4  Black  Com.  p.  50. 


360  BLASPHEMY. 


must  be  interpreted  in  the  light  of  what  has  preceded, 
namely:  that  a  mere  denial  of  the  official  concept  of  the 
Trinity  is  criminal  blasphemy  or  profanity. 

"By  3  Jac.  1.  c.  21.  Whoever  shall  use  the  name  of  the 
Holy  Trinity  profanely  or  jestinglj^,  in  any  stage,  play, 
interlude  or  show  shall  be  liable  to  a  penalty  of  ten 
pounds." 

"By  Will.  III.  c.  18,  sec.  17  (1689-1703).  Whoever  shall 
deny  in  his  preaching  or  waiting  the  doctrine  of  the  blessed 
Trinity  shall  lose  all  benefit  of  the  act  of  toleration,  etc. 
This  act,  in  addition  to  depriving  the  offender  of  the 
privileges  above  mentioned,  leaves  the  punishment  of  the 
offense,  as  a  misdemeanor  at  common  law."^^  This  view 
that  it  is  a  crime  to  deny  the  Trinity  is  abundantly  justi- 
fied by  cases  of  which  an  abstract  has  been  hereinbefore 
published.^^ 

Abraham  Bishop  in  a  Preface  to  the  publication  of  an 
"Oration  delivered  at  Wallingford  on  the  11th  of  March, 
1801,  before  the  Republicans  of  Connecticut  at  their  gen- 
eral Thanksgiving  for  the  election  of  Thomas  Jefferson," 
protests  against  the  blasphemy  law  of  Connecticut, 
coupled  with  a  demand  for  a  constitutional  form  of  govern- 
ment and  religious  liberty.  He  said:  "Certainly  the 
Trinitarian  doctrine  is  established  by  law,  and  the  denial 
of  it  is  placed  in  the  rank  of  felonies.  Though  we  have 
ceased  to  transport  from  town  to  town,  Quakers,  New^- 
lights  and  Baptists,  yet  the  dissenters  trom  our  prevail- 
ing denomination  are,  even  at  this  moment,  praying  for 
the  repeal  of  those  laws  which  abridge  the  rights  of  con- 
science." 

If  then  this  Connecticut  statute  against  blasphemy  is 
to  be  interpreted  according  to  the  Common  law  of  England 
at  the  time,  or  according  to  the  (current  colonial  interpreta- 

"Holt;  Law  of  Libel,  1816,  second  edition,  pp.  63-66. 

"Legatt,  1612,  p.  180;  Wightman,  1612,  p.  183;  Best,  1643,  p.  258;  Bid- 
die,  1648,  pp.  265-268-269;  Coppe.  1650,  p.  272;  Fry,  1650,  p.  273; 
Racovian  Catechism,  1652.  p.  279-280;  Muggleton,  1652-1676,  pp. 
288-289-292:  Aikenhead,  1695,  pp.  308;  Kinnymount,  1697,  p.  311; 
Toland.  1697,  p.  312;  Fowler,  1698,  p.  313;  Clendon,  1709,  p.  323; 
Hall,  1709-1720,  pp.  324,  331;  (?)  Manderville,  1728,  p.  332;  (?)  EI- 
well,  1726,  p.  335;  (?)  Ashley,  1746,  p.  338;  Hive,  1756,  p.  339.  Dix- 
well  and  Cabe,  1763,  p.  340;   (?)  Williams,  1797,  p.  344. 


A  REVIEW  OF  BL.\SPnEMY  TROSECUTIONS.  361 

tion,  and  has  not  been  repealed  by  the  Constitution,  then 
all  Universalists  and  Unitarians  as  well  as  Agnostics  and 
Infidels  are  still  penalized.  Is  there  a  court  so  bigoted 
as  to  enforce  this  statute  as  the  judicial  rules  for  its  con- 
struction require? 

Mr.  Bishop  and  all  those  who  favored  the  formation  of 
a  constitutional  government  in  Connecticut  frankly  and 
earnestly  demanded  the  repeal  of  all  these  laws,  by  means 
of  a  constitution  guaranteeing  religious  liberty  and  free 
speech.  They  finally  prevailed  and  their  purpose  was 
made  effective  and  must  be  considered  authoritative  in  in- 
terpreting the  Connecticut  Bill  of  Rights. 

This  purpose  of  the  constitutionalists  was  perfectly  un- 
derstood by  the  upholders  of  the  "established  order,"  the 
State-church.  Their  understanding  of  the  issue  of  the  con- 
stitutionalists is  made  plain  in  "Count  the  Cost,  an  ad- 
dress to  the  People  of  Connecticut."  There  the  case  of 
the  hated  constitutionalists  is  thus  stated:  "They  are 
obstinately  determined  to  banish  from  the  public  mind  all 
affection  and  veneration  for  the  clergy,  all  respect  for  the 
institutions  of  religion  and  to  reduce  Connecticut  to  the 
condition  which  knows  no  distinction  between  'him  who 
serveth  God  and  him  who  serveth  Him  not.'  "^*  That 
purpose  became  dominant  by  the  adoption  of  the  Con- 
necticut constitution.  This  then  was  the  issue  on  which 
the  constitution  of  Connecticut  was  adopted  and  supplies 
us  with  the  key  for  its  proper  interpretation. 

Various  Denials  of  Orthodoxy. — 1600-1642. 

As  illustrative  of  the  rule  that  any  repudiation  of  any 
doctrine  deemed  essential  to  religious  orthodoxy  is  a  blas- 
phemy we  may  profitably  recall  the  following  cases  already 
abstracted.  Atwood  (1605,  p.  181)  denied  the  antiquity 
of  Christian  doctrine,  and  discredited  preaching  and  divine 
service.  Bartholomew  (1612,  p.  182)  repudiated  the  Nicene 
and  Athanasian  creeds,  and  other  matters  essential  to  the 
orthodox  conception  of  the  Trinity.  Wightman  (1612,  p. 
183)  repudiated  the  Apostles  Creed,  as  well  as  the  Mcene 
and  Athanasian  creeds,  denied  the  Trinity  and  disputed 

"P.  6.  Johnathan  Steadfast  [pseud.].  Hartford,  1804. 


362  BLASPHEMY. 


much  of  orthodox  interpretation  of  the  Bible.  Ogelvie 
(1615,  p.  185)  asserted  the  temporal  supremacy  of  the 
Pope.  This  also  was  a  denial  of  orthodox  interpretation 
of  Holy  Writ  as  to  the  apostolic  succession.  As  to  Dighton 
and  Holt  (1616,  p.  186)  we  know  little  more  than  that  they 
acted  "to  the  great  encouragement  of  scliismatical  and  re- 
fractory persons."  Mocket  (1617,  p.  187)  probably  com- 
mitted no  greater  offence  than  to  omit  from  liis  book  the 
first  clause  in  the  translation  of  the  twentieth  article  of  the 
thirty-nine  articles  of  faith.  Thus  he  denied  that  the 
Church  had  power  to  decree  rites,  and  authority  to  settle 
theologic  controversies. 

Traske  (1618,  p.  187)  believed  that  Saturday  should  be 
observed  as  the  Sabbath.  Scott  (1603-1625,  p.  188)  ques- 
tioned the  Bible  doctrine  of  witchcraft.  Pare  (1622,  p. 
190 )  disagreed  with  the  established  church  as  to  the  mean- 
ing of  the  Epistle  to  the  Romans.  Mountague  (1626,  p.  191) 
excited  a  controversy  as  to  whether  the  orthodoxy  of  the 
King  or  of  the  Parliament  should  determine  the  guilt  of 
his  book.  Which  of  conflicting  claims  of  orthodoxy  will 
the  Connecticut  Court  apply  in  determining  what  is  blas- 
phemy? Leighton's  great  offence  consisted  largely  in  de- 
claring the  upholders  of  orthodoxy  and  persecution  to  be 
"men  of  blood  and  enemies  to  God,"  thus  repudiating  the 
established  interpretation  of  Holy  Writ.  Political  changes 
resulted  in  declaring  Leighton's  opinions  innocent  and 
orthodox.  Which  orthodoxy  is  legally  orthodox  under  the 
Connecticut  statutes? 

Piyn  (1633,  p.  208)  was  so  puritanic  as  to  oppose  the 
theatre.  This  false  doctrine  was  officially  repudiated  by 
the  Queen  taking  part  in  her  own  royal  person,  and  slie 
could  do  no  wrong.  Of  course,  Pryn's  book  must  have  been 
"against  all  reverence  and  honor,  which  all  Christians  owe 
to  our  Saviour  Jesus"  who  was  reigning  through  the  royal 
family.  The  long  parliament  declares  Pryn's  convictions 
illegal.    A  new  orthodoxy  had  come  into  political  power. 

Hayden  (1634,  p.  210)  was  punished  for  preaching 
"against  setting  up  images  in  churches."  The  Connecticut 
puritans  vehemently  agreed  vnth  Hayden  upon  this  sub- 
ject.   Will  the  court  now  assume  that  the  Colonial  puri- 


A  REVIEW  OF  RL.V.SPHEMY  PROSECUTIONS.  363 

tans  adopted  the  common-law  conception  of  blasphemy, 
and  therefore  penalized  themselves?  Burton  (1637,  p. 
220)  denied  the  divine  right  of  the  bishops,  and  accused 
them  of  introducing  popish  innovations.  Thus  he  disputed 
the  orthodox  interpretation  of  the  Bible.  Pocklington 
(1640,  p.  231  et  seq.)  was  penalized  for  many  minor  mani- 
festations of  a  leaning  toward  popery.  Nathaniel  Barnard 
(1640,  p.  253)  was  penalized  for  his  opinion  over  a  con- 
troversy as  to  whether  faith  was  more  important  toward 
securing  salvation  than  works.  This  brings  us  to  the 
date  of  the  adoption  of  the  Connecticut  statute  against 
blasphemy. 

Various  Denials  of  Orthodoxy. — 1642 — 1818. 

Paul  Best  (1643,  p.  258)  denied  the  Trinity.  Knolles 
got  into  trouble  for  some  anabaptist  doctrine;  exact  infor- 
mation is  not  at  hand.  King  James'  Book  of  Sports 
(1644)  was  ordered  burnt  by  the  puritans  because  it  re- 
pudiated the  funerial  characteristics  of  the  puritan  Sab- 
bath. In  the  reign  of  James,  puritans  were  punished  for 
refusing  to  read  the  Book  of  Sports  in  their  churches. 
Which  view  will  be  declared  orthodox  in  Connecticut? 

Archer  (1645,  p.  261)  blasphemed  by  counselling  sin- 
ners to  be  comforted  because  God  was  really  the  author 
of  all  that  is,  and  sin,  after  all,  a  means  of  grace.  Biddle 
(1647,  p.  266)  "the  father  of  Unitarianism"  was  punished 
because  he  repudiated  the  orthodox  conception  of  the  Trin- 
ity by  denying  the  divinity  of  the  Holy  Ghost.  Clarkson's 
offense  (1645,  p.  269)  probably  consisted  in  denying  the 
religious  value  of  baptism  by  sprinkling.  Erbery's  offense 
(1646,  p.  270)  consisted  in  believing  God  too  merciful  to 
punish  anyone.  Coppe  (1650,  p.  272)  appears  to  have  suf- 
fered for  believing  in  perfectionism,  a  denial  of  sin  in  the 
elect.  Fry  (1650,  p.  273)  denied  the  Trinity  upon  Scrip- 
ture grounds, 

Robert  Norwood  (1651,  pp.  277-8-9)  was  imprisoned  for 
asserting  the  blasphemous  error  that  the  soul  of  man  is 
the  essence  of  God ;  that  there  is  no  heaven  or  hell  except 
what  we  experience  here  [hell  and  heaven  are  states  of 
being,  not  places] ;  and  that  man  has  a  trinity  within  him- 


304  BLASPHEMY. 


self;  the  soul  that  is  God,  the  spirit  that  is  the  devil,  and 
the  body  that  is  the  beast.  Also  that  Jesus  did  not  die 
to  pacify  God's  wrath. 

The  Raeovian  Catechism  (1652,  p.  280)  was  condemned 
for  asserting  that  the  essence  of  God  was  a  unity,  a  single 
personality.  This  denied  the  orthodox  meaning  of  the 
divinity  of  Jesus.  Keach  (1664,  p.  282)  was  convicted  of 
the  terrible  blasphemy  of  repudiating  infant  baptism  and 
that  God  had  not  chosen  the  great  but  rather  the  poor  and 
despised,  and  he  scandalized  the  Liturgy. 

John  Morgan  (1679,  p.  297)  was  too  orthodox  because 
he  received  "Holy  orders"  from  Rome.  Delaune  and 
Kalphson  (1683,  p.  301)  offended  because  they  did  not  ac- 
cept the  book  of  common  prayer.  Baxter  in  many  ways 
denied  the  divine  right  and  apostolic  succession  of  the  Ang- 
lican bishops  and  their  conception  of  protestanism  and 
therefore  was  "against  the  government."  Blount  (1693, 
p.  307)  only  reported  fairly  the  religious  views  and  argu- 
ments of  Paganism  "plausible  in  themselves,  of  the  fallacy 
of  which  none  but  men  of  parts  and  learning  can  be  proper 
judges."  John  Asgill  (1707,  p.  319)  thought  he  proved  by 
Holy  Writ  that  "death  is  not  obligatory  on  Christians,  but 
that  man  may  be  translated  hence  into  eternal  life  with- 
out passing  through  death."  Terribly  blasnhemous  of 
course ! 

Tindal  (1710,  p.  326)  argued  that  a  clergyman  is  God's 
ambassador,  and  therefore  cannot  be  appointed  by  human 
authority.  Dr.  Mead  (1723,  p.  331)  was  prevented  from 
publishing  a  book  of  Servetus,  who  himself  had  been  burnt 
at  the  instigation  of  Calvin.  Woolston  (1729,  p.  337)  con- 
tended that  the  alleged  miracles  of  Jesus  were  but  alle- 
gorical expressions  of  truth.  Ashley  (1746,  p.  338)  was 
punished  for  the  same  book  of  Woolston.  Annett  (1763, 
p.  341)  discredited  the  Pentateuch.  Is  there  an  intelligent 
judge  who  does  not  do  so  now?  Williams  (1797,  p.  344) 
was  convicted  of  blasphemy  for  publishing  Paine's  "Age  of 
Reason."  Many  others  were  later  punished  for  the  same 
offense.  Paine  was  a  Deist  and  wrote  his  book  to  defend 
God  against  the  calumnies  of  the  orthodox  church  and  of 
the  Bible.     Eatoh's  offense  (1812,  p.  346)  was  identical 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  865 


with  Williams',  while  Houston's  crime  (1813,  p.  347)  was 
similar  in  nature. 

In  these  early  days  men  were  seldom  given  much  to  the 
sacrilege  of  disputing  whether  the  whale  swallowed  Jonah. 
Had  they  done  so,  it  would  clearly  have  been  blasphemy. 
So  it  must  now  be  blasphemy  as  a  denial  of  part  of  Holy 
Writ.  That  is  the  inevitable  consequence  if  the  common 
law  definition  is  to  be  enforced.  Furthermore,  the  com- 
mon-law conception  of  blasphemy  as  herein  portrayed  must 
be  enforced  unless  the  court  usurpes  the  legislative  func- 
tion of  altering  the  criteria  of  guilt,  or  else  declares  the 
blasphemy  statute  unconstitutional. 

Delusions  of  Grandeur. 

In  those  days  of  spiritual  joy  unbounded  and  prosecu- 
tions for  blasphemy  unrestrained,  delusions  of  grandeur 
usually  found  religious  expression  and  orthodox  suppres- 
sion. Thus  Naylor,  (1656,  p.  280),  Taylor,  (1675,  p.  285), 
Muggleton,  (1653-1676,  pp.  286-294),  One  of  the  Society 
of  Love,  (1678,  p.  295)  and  Susannah  Fowler,  (1698,  p. 
313),  all  came  to  gTief  for  their  grandiose  religious  de- 
mentia. These  unfortunates  were  blasphemers,  vile  blas- 
phemers. When  the  religious  egomania  found  expression 
in  political  ambition,  they  were  of  course  punished  as  se- 
ditious persons.  We  have  better  ways  now.  When  de- 
lusions of  grandeur  find  religious  expression  we  now  put 
the  victims  in  an  asylum  unless  they  succeed  in  starting 
a  new  religious  society  among  those  of  nearly  their  own 
sort.  If  the  delusions  of  grandeur  express  themselves  in 
the  conventional  political  manner  we  may  send  its  victim 
to  Congress,  or  maybe  one  occasionally  gets  upon  the  ju- 
dicial bench  to  try  his  fellows  for  expressing  opinions  as 
blasphemers. 

It  requires  de- 
lusions of  grandeur  to  make  one  feel  himself  possessed  of 
any  absolute  truth  or  absolute  anything,  and  it  is  only 
upon  our  conscious  or  unconscious  assumption  of  an  ab- 
solute truth  that  we  are  inclined  to  punish  another  for 
expressing  even  an  impolite  disagreement. 

Tolerance  is  Blasphemy. 
In  1642,  when  the  Connecticut  legislation  provided  the 


366  BLASPHEMY. 


death  penalty  for  worshipers  of  the  wrong  God  and  for 
blasphemers,  Bible  texts  were  cited  in  justification.  In 
other  words,  the  blasphemy  statute  was  merely  deemed 
to  be  declaratory  of  the  divine  law.  This  again  points 
to  the  repeal  of  the  blasphemy  statute  by  the  automatic 
operation  of  the  Connecticut  Constitution  when  it  dis- 
established the  State-church. 

If  expressed  heresy  must  be  punished  as  blasphemy  be- 
cause commanded  by  God  through  the  Bible,  and  if  to  deny 
the  accepted  orthodox  interpretation  of  the  Bible  is  blas- 
phemy, as  the  courts  have  often  decided,  then  it  follows 
that  to  advocate  tolerance  is  a  denial  of  a  part  of  Christian- 
ity— and  is  blasphemy  under  the  common-law.  This  very 
argument  for  tolerance  is  blasphemy  because  it  repudiates 
those  parts  of  the  Bible  which  command  prosecution. 

This  view  also  has  judicial  precedent  to  support  it.  One 
of  the  elements  of  Leighton's  crime  (1630,  p.  196)  was  a 
complaint  against  the  Bishops  as  "Men  of  blood"  because 
they  enforced  the  persecutory  conception  of  "divine  law." 
This  was  in  effect  a  plea  for  tolerance.  Likevdse  with 
Wilson.  (1637,  p.  227.)  He  had  "scandalized  the  Gov- 
ernors and  Government  of  the  Church  of  England  as  perse- 
cutors of  God's  faithful  ministers  and  people,"  the  dissen- 
ters. Again,  to  complain  of  the  persecution  of  those  who 
are  only  enforcing  the  intolerance  of  God  was  a  crime. 

Among  the  many  "blasphemies"  of  Muggleton  (1653, 
pp.  289-290)  was  this,  that  he  denied  the  courts  "to  be 
judges  of  blasphemy  against  the  Holy  Spirit."  Again 
he  was  declared  a  blasphemer,  because  he  said  to  the 
court:  "We  told  you  that  you  had  no  Commission  from 
our  God  to  be  judge  of  spiritual  things."  Bury  (1690,  p. 
305)  seems  to  have  been  penalized  for  this  fine  statement 
of  the  meaning  of  tolerance :  "No  King  is  more  indepen- 
dent in  his  own  dominions  from  any  foreign  jurisdiction 
in  matters  civil,  than  every  Christian  is  within  his  own 
mind  in  matters  of  faith."  Obviously  this  was  a  denial 
of  that  essential  of  the  Christian  religion  which  asserted 
the  rule  by  divine  right.    Treason  and  Blasphemy ! 

Daniel  Defoe  (1903,  p.  316)  argued  for  tolerance  by 
an  ironical  justification  of  the  extirpation  of  all  dissenters. 


A  REVIEW  OF  BLASrHEJIY  PROSECUTIONS.  367 

For  this  he  was  imprisoned,  and  quite  properly  so  from 
the  viewpoint  that  to  ridicule  or  heap  contempt  upon  any 
part  of  Holy  Writ  is  to  be  guilty  of  blasphemy.  Mathew 
Tindall  (1710,  pp.  329-330)  claimed  that  the  people  had 
the  right  to  defend  their  rights  against  a  person  who  had 
no  authority  to  take  them  away.  This  intelligent  declara- 
tion of  freedom  also  was  made  a  subject  of  criminal  indict- 
ment. 

The  Connecticut  colonists  came  from  Massachusetts 
and  brought  their  theocratic  notions  with  them.  The  Mas- 
sachusetts statute  against  blasphem}'  also  cited  Bible 
passages,  to  exhibit  their  subordination  of  the  State  to 
the  Church.  A  Massachusetts  precedent,  therefore,  be- 
comes of  great  importance  in  Connecticut. 

Punished  For  Tolerance. 

Eoger  Williams  was  banished  from  the  Massachusetts 
colony  probably  in  1636.  That  is  before  the  departure  of 
the  Connecticut  Colonists.  When  in  1642  the  latter  adopt- 
ed a  statute  against  blasphemers  and  cited  passages  from 
the  Bible  in  justification,  it  should  be  presumed  that  they 
incorporated  into  that  statute  the  previous  interpretation 
of  the  Massachusetts  colony.  It  will  appear  that  this  in- 
terpretation was  in  perfect  harmony  with  the  English 
rule,  that  the  denial  of  any  part  of  the  Bible  was  blas- 
phemous. It  will  now  be  shown  that  to  advocate  tolerance 
when  the  Bible  had  commanded  intolerance,  was  adju- 
dicated a  crime. 

Roger  Williams  was  banished  from  Massachusetts  by 
a  court  which  had  already  decided  "that  anyone  was 
worthy  of  banishment  who  should  obstinately  assert  that 
the  civil  magistrate  might  not  intermeddle  even  to  stop 
a  church  from  apostacy  and  heresy."^^  Later  it  will  be 
shown  more  fully  just  what  was  Roger  Williams'  concep- 
tion of  religious  liberty  and  free  speech.  Then  it  will  be 
claimed  that  his  opinions  are  authoritative  on  the  meaning 
of  these  parts  of  our  Constitution. 

Under  the  protection  of  the  Rhode  Island  Colony,  which 
Williams  founded,  he  entered  into  a  spirited  controversy 

"  Bloody  tenet  of  persecution,  p.  XV,  edition  of  Lond.,  1848. 


368  r.LASPHEMY, 


in  defense  of  his  blaspliemons  attack  upon  intolerance.  His 
various  pamphlets  upon  this  subject  finally  made  a  book 
which  often  has  been  reprinted.  Williams'  fundamental 
contention  was  that  the  civil  power  has  no  authority  what- 
ever over  the  human  mind  and  conscience.  The  necessary 
corollary  of  this  opinion,  was  that  the  churches  of  Con- 
necticut and  Massachusetts  as  well  as  that  Church  of  Eng- 
land was  anti-Christian  in  enforcing  blasphemy  laws.  Of 
course,  this  implication  was  blasphemous  because  in  con- 
flict with  an  essential  doctrine  of  orthodox  Christianity. 
Prynne  denounced  the  book  as  a  "lycentious  work,"  and 
the  House  of  Commons  ordered  it  burnt  by  the  common 
hangman. ^^  Thus  again  do  we  have  precedent  to  the  effect 
that  the  denial  of  that  part  of  the  Bible  which  commands 
persecution  is  a  crime.  Williams  escaped  England  be- 
fore he  could  be  arrested. 

The  underlying  logic  of  this  is  made  plain  by  anotlier 
good  New  England  authority,  Mr.  Simon  Backus.  He 
wrote  a  pamphlet  against  those  who  were  insisting  on 
framing  a  Constitution  that  provided  for  a  separation  of 
Church  and  State.  In  this  he  said:  "To  say,  therefore, 
that  there  is  no  occasion  for  the  civil  magistrate  to  inter- 
fere in  matters  of  religion,  is  either  to  contradict  plain 
and  demonstrative  fact;  [as  he  had  just  before  shown 
from  Holy  Writ]  or  else  to  charge  the  divine  author  of 
that  dispensation  with  adding  the  sanction  of  his  appro- 
bation and  the  seal  of  his  authority  to  a  useless  and  un- 
necessary institution."^'^ 

Constitution  Overrules  Precedent. 

If  the  court  is  not  willing  to  hold  that  the  mere  advocacy 
of  toleration  is  a  crime,  then  this  blasphemy  statute  will 
be  declared  unconstitutional.  It  is  confidently  believed 
that  no  court  will  usurp  the  legislative  function  of 
changing  the  well-established  criteria  of  guilt  in  this 
penal  statute,  in  order  to  make  it  less  offensive  to  the  Con- 
stitution.   No  such  mere  amendment  can  wholly  eliminate 

"Jour,  of  House  of  Commons,  v.  3,  20  Car.  I,  p.  585. 

"A  dissertation  upon  the  Right  and  Obligation  of  the  Civil  Magistrate 

to  take  care  of  the  interests  of  religion  and  provide  for  its  support, 

p.  15. 


A  REVIEW  OF  r.L.VSrHEMY  PROSECUTIONS.  389 

the  conflict  between  blasphemy  prosecutions  and  consti- 
tutional religious  and  intellectual  liberty.  The  correct- 
ness of  tills  last  statement  will  be  made  more  obvious  by 
a  thorough  study  of  the  precise  issue  which  had  been  con- 
tended for  and  which  were  decided  by  our  constitutional 
guarantees. 

Witchcraft  and  Common  Law. 

A  most  important  part  of  the  Christian  religion  and  of 
Holy  Scripture,  according  to  the  dominant  conception  in 
Connecticut  and  England  of  1642  and  after,  was  a  be- 
lief in  Witchcraft.  It  would  seem  to  follow,  as  a  logical 
necessity  from  the  juridical  meaning  of  "blasphemy,"  in 
1642,  that  it  included  a  denial  of  those  parts  of  Holy 
Scripture  which  declare  or  assume  the  truth  of  witch- 
craft. This  is  in  harmony  with  both  the  legal  and  ecclesi- 
astical thought  of  the  time,  both  in  England  and  in  Con- 
necticut. 

I  have  just  read  a  book  entitled :  "A  Tryal  of  Witches 
at  the  Assizes  held  at  Bury  St.  Edmonds  for  the  county 
of  Suffolk  on  the  tenth  day  of  March,  1664,  before  Sir 
Matliew  Hale,  K.T.,  then  Lord  Chief  Baron  of  His  Majes- 
ties' Court  of  Exchequer,"  published  in  1682.  Therein  is 
a  record  of  instructions  given  to  jurors,  which  reads  as 
follows:  "That  there  were  such  creatures  as  witches  he 
(Lord  Hale)  made  no  doubt  at  all;  For  first,  the  scrip- 
tures had  affirmed  so  much.  Secondly,  the  wisdom  of  all 
nations  had  provided  laws  against  such  persons,  which  is 
an  argument  of  their  confidence  of  such  a  crime.  And 
such  hath  been  the  judgment  of  this  kingdom  as  appears 
by  that  act  of  parliament  which  had  provided  punishments 
proportionable  to  the  quality  of  the  offense.  And  desired 
them  strictly  to  observe  their  evidence;  and  desired  the 
great  God  of  Heaven  to  direct  their  hearts  in  this  weighty 
matter  they  had  in  hand;  for  to  condemn  the  innocent, 
and  to  let  the  guilty  go  free,  were  both  an  abomination  to 
the  Lord"  (p.  50). 

"In  conclusion  the  jndges  and  all  the  court  were  fully 
satisfied  with  the  verdict,  and  thereupon  gave  judgment 
against  the  [13]  witches  that  they  should  be  hanged.  .  .  , 


370  BLASPHEMY. 


And  they  were  executed  on  Monday,  the  seventeenth  of 
March  following,  but  they  confessed  notliing."^^ 

A  century  later  the  learned  Sir  William  Blackstone 
said:  "To  deny  the  possibility,  nay,  actual  existence  of 
witchcraft  and  sorcery,  is  at  once  flatly  to  contradict  the 
revealed  will  of  God  in  various  passages  of  hotli  the  Old 
and  'New  Testament,  and  the  thing  itself  is  a  truth  to 
which  every  nation  in  the  world  hath  in  its  turn  born 
testimony,  either  by  example  seemingly  well  tested,  or  by 
prohibitory  laws  which  at  least  suppose  the  possibility 
of  commerce  with  evil  spirits."^^  But  to  flatly  contradict 
*^any  part"  of  the  holy  scriptures  was  blasphemy,  accord- 
ing to  the  common  law  authorities.  Therefore,  to  deny 
witchcraft  is  a  crime  today  under  the  Connecticut  statute 
against  blasphemy,  which  was  passed  in  1642,  and  which 
is  now  sought  to  be  enforced. 

In  New  England  the  following  "authorities"  were  used 
in  support  of  Witchcraft : 

Keeble,  Common  Law,  Chapter  on  Conjuration,  pp.  217- 
220. 

Sir  Matthew  Hale's  Tryals  of  Witches,  1682. 

Glanville's  Collection  of  Sundry  Trials  of  Witches  in 
England  and  Ireland  in  the  years  1658-61-64-81. 

Bernard's  Guide  to  Jurymen. 

Baxter  and  Burton,  Histories  about  Witches. 

Cotton  Mather,  Memorable  Providences  relating  to 
Witchcraft. 

Of  course  these  authorities  in  turn  rested  upon  "Holy 
Writ"  itself. 

The  Bible  and  Witchcraft. 
To  make  it  still  more  plain  that  a  denial  of  witchcraft 
is  the  denial  of  an  important  doctrine  of  the  Bible,  and, 
therefore,  of  Christianity,  as  that  still  is  understood  by 
many  and  as  that  was  generally  understood  during  the 
eighteenth  century  and  before,  we  will  now  quote  a  few 
of  the  many  Bible  passages  which  expressly  or  impliedly 
affirm  the  belief  in  Witchcraft: 

"  See  also  Annals  of  Witchcraft,  by  Drake,  preface,  p.  81. 
"Blackstone  Commentaries,  p.  59,  edition  of  1850. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  371 

1.  "Thou  Shalt  not  suffer  a  witch  to  live."  Exodus  xxii, 
18. 

2.  "There  shall  not  be  found  among  you  anyone  that 
maketh  his  son  or  liis  daughter  to  pass  through  fire,  or 
that  useth  divination,  or  an  enchanter,  or  a  witch,  or  a 
charmer,  or  a  consulter  with  familiar  spirits,  or  a  wizard, 
or  necromancer."    Deut.  xviii,  10-11. 

3.  "A  man  also,  or  woman,  that  hath  a  familiar  spirit, 
or  that  is  a  wizard,  shall  surely  be  put  to  death :  they  shall 
stone  them  with  stones."    Lev.  xx,  27. 

4.  "He  observed  times,  and  used  enchantments,  and 
used  witchcraft,  and  dealt  with  a  familiar  spirit,  and 
with  wizards:  he  wrought  much  evil  in  the  sight  of  the 
Lord,  to  provoke  him  to  anger."    2  Chronicles  xxxiii,  6. 

5.  "Now  the  works  of  the  flesh  are  manifest,  which  are 
these:  adultery,  fornication,  uncleaness,  lasciviousness, 
iflolatry,  witchcraft,  *  *  *  seditions,  heresies."  Gal.  vi, 
19-20. 

6.  "And  it  came  to  pass,  when  Joram  saw  Jehu,  that 
he  said,  is  it  peace  Jehu?  And  he  answered,  what  peace, 
so  long  as  the  whoredoms  of  your  mother  Jezebel  and  her 
witchcrafts  are  so  many?"    2  Kings  ix,  22. 

7.  "Because  of  the  multitude  of  the  whoredoms  of  the 
well-favored  harlot,  the  mistress  of  witchcrafts,  that  sel- 
leth  nations  through  her  whoredoms,  and  families  through 
her  witchcrafts."    Nahum  iii,  4. 

8.  "And  the  soul  that  turneth  after  such  as  have  famil- 
iar spirits  and  after  wizzards  that  go  a  whoring  after 
them,  I  will  even  set  my  face  against  that  soul  and  will 
cut  him  off  from  among  his  people."    Lev.  xxii,  6. 

9.  "Saul  had  put  away  those  that  had  familiar  spirits 
and  the  wizards  out  of  the  land."    Samuel  xxxviii,  3. 

10.  "For  rebellion  is  as  the  sin  of  witchcraft."  Samuel 
XV,  23. 

11.  "And  I  will  cut  off  witchcraft  out  of  the  land." 
Micah  V,  12. 

12.  "Many  of  them  also  which  used  curious  arts  brought 
their  books  together  and  burned  them."    Acts  xix,  19. 

13.  "But  there  was  a  certain  man  called  Simon,  which 


372  BLASrHEMY, 


before-time  in  the  same  city  used  sorcery  and  bewitched 
the  people  of  Samaria."  Acts  viii,  9. 

14.  "If  a  man  abide  not  in  me,  he  is  cast  forth  as 
a  branch,  and  is  withered,  and  men  gather  them  and  cast 
them  into  the  fire,  and  they  are  burned."    John  xv,  6. 

"In  the  opinion  of  the  eminent  Italian  Jurist,  Bartolo, 
witches  were  burned  alive  in  early  times  on  this  [last] 
authority."^" 

Blasphemy  to  Deny  Witchcraft  in  Connecticut. 

The  New  England  indictments  against  witchcraft  read : 
"entertaining  familiarity  with  Satan,  the  enemy  of  man- 
kind, and  by  his  help  doing  works  above  the  course  of 
nature."      (Ibid.) 

In  Connecticut  (1642)  we  find  this  law  against  witchery : 
"If  any  man  or  woman  be  a  witch — that  is,  hath  or  con- 
sulted with  a  familiar  spirit — they  shall  be  put  to  death. 
Exodus  xxii,  18;  Leviticus  xx,  27;  Deuteronomy  xviii,  10, 
ll."2i 

In  the  New  Haven  Colony,  1655,  it  was  provided:  "If 
any  person  be  a  witch,  he  or  she  shall  be  put  to  death, 
according  to  Exodus  xxii,  18 ;  Leviticus  xx,  27 ;  Deuterono- 
my xviii,  10,  11. "^2 

Fairly  complete  accounts  of  the  enforcement  of  these 
laws  are  contained  in  "The  Witchcraft  Delusion  in  Colo- 
nial Conn.,  1647-1697,  by  John  M.  Taylor."  There  can  be 
no  doubt  whatever  that  a  belief  in  Witchcraft  was  an 
essential  part  of  the  belief  in  the  "Holy  Scriptures,"  ac- 
cording to  the  official  religion  of  the  Connecticut  Colonies 
till  long  after  1642.  This  is  so,  whether  we  view  the  official 
religion  as  local  and  particular,  or  view  it  as  identical 
with  the  official  religion  established  in  England  . 

We  have  also  seen  that  according  to  the  Common-law 
the  denial  of  "any  i)art"  of  the  Christian  religion  or  the 
"Holy  Scriptures"  constituted  blasphemy.  It  inevitably 
follows  that  the  Connecticut  statute  against  blasphemy, 
whether  interpreted  according  to  the  obvious  convictions 

*•  The  Witchcraft  Delusion  in  Colonial  Connecticut,  1647-1697,  by  John 

M.  Taylor,  p.  17. 
"Colonial  Records  of  Connecticut,  vol.  1,  p.  11. 
"New  Haven  Colonial  Records,  vol.  11,  p.  576,  Code  1655. 


A  REVIEW  OF  BLASPHEMY  PROSECUTIONS.  373 

of  those  who  passed  the  law,  or  according  to  the  principles 
of  the  Common-law,  it  penalizes  the  denial  of  Witchcraft. 
This  finds  a  precedent,  when  James  I  of  England  ordered 
the  burning  of  Scots'  most  scholarly  "Discovery  of  Witch* 
craft."    (pp.  188-190  herein.) 

It  is  believed  that  there  is  not  a  court  in  this  country 
that  has  the  courage  or  the  disposition  to  enforce  this  blas- 
phemy statute  according  to  the  letter  and  purpose  of  those 
who  passed  it.  Neither  has  the  court  any  constitutional 
authority  to  alter  that  established  interpretation  or  that 
purpose,  because  this  would  be  tantamount  to  the  judicial 
amendment  of  the  statute.  The  very  essence  of  a  legisla- 
tive amendment  consists  in  an  alteration  of  the  criteria 
of  guilt.  Neither  can  the  Common-law  import  of  "blas- 
phemy," nor  the  evident  legislative  intent,  be  reconciled 
either  with  the  fair  import  of  the  words  of  our  constitu- 
tional guarantees,  with  their  historical  interpretation,  or 
with  the  purpose  of  those  who  demanded  and  caused  the 
constitutional  guarantees  to  be  adopted  into  our  organic 
law. 

From  these  considerations  it  would  seem  to  follow  quite 
conclusively  that  this  statute  must  be  declared  unconsti- 
tutional. 


CHAPTER  XXI. 

ROGER  WILLIAMS,  JAMES  MADISON, 
AND  THOMAS  JEFFERSON. 

This  contest  for  intellectual  freedom  and  its  meaning, 
which  has  been  set  forth  with  much  precision  as  it  worked 
out  in  England,  will  now  be  traced  to  American  soil. 
Here  we  may  again  remind  ourselves  that  the  correct 
interpretation  of  our  constitutional  guarantees  of  free- 
dom is  nowhere  more  appropriately  sought  than  in  the 
historic  issues  which  were  decided,  the  former  policies  that 
were  overruled,  and  in  the  evil  sought  to  be  remedied,  by 
our  constitutions.^  It  is  also  important  to  remember  that 
none  of  the  pre-revolutionary  historical  data  either  from 
England,  or  from  Roger  Williams  in  America,  has  ever 
been  considered  by  any  American  court,  as  an  aid  to  as- 
certaining the  meaning  of  intellectual  liberty  in  relation  to 
religion. 

Roger  Williams  and  Secularism. 

In  England  the  slowly  changing  attitude  toward  toler- 
ance may  be  said  to  date  from  Milton's  immortal  "Areo- 
pagitica,"  published  in  1644.  The  Star  Chamber  court  was 
abolished  in  1641.  During  its  existence  a  youth  named 
Roger  Williams  took  shorthand  notes  of  the  speeches  ai\d 
proceedings.  Thus,  doubtless,  he  learned  something  of 
what  does  not  constitute  liberty.  He  probably  studied 
law  with  Sir  Edward  Coke,  but  abandoned  that  calling 
for  the  ministry.  He  left  for  America  December,  1630, 
and  settled  in  Massachusetts. 

The  founders  of  the  Connecticut  colonies  came  from 
Massachusetts  and  brought  with  them  all  the  theocratic 
notions  of  the  dominant  Puritan  faction.  Roger  Williams 
had  liccn  under  their  suspicion  for  some  time  for  his  too 
great  liberality,  and  the  circumstance  of  his  expulsion 
has  been  briefly  related. 

*  Reynolds  v.  U.  S.,  98  U.  S.  145-162. 
Gibbons  v.  Ogden,  9  Wheaton  1 ;  6  Law.  Ed.  1. 
Scott  V.  Sanford,  19  Howard  393 ;  IS  Law.  Ed.  691. 
Boyd  V.  U.  S.,  116  U.  S.  616-622-625. 
So.  Carolina  v.  U.  S.,  199  U.  S.  437. 

428 


WILLIAMS,     MADISON,     JEFFERSON  429 

The  colony  of  Rliode  Island  which  Williams  founded 
was  built  upon  an  entirely  different  theory  of  government 
from  any  that  had  previously  obtained  in  America  or 
Europe.  Here  we  find  the  first  declaration  of  a  democracy, 
and  the  beginnings  of  a  secular  state  devoted  to  toleration 
in  a  new  sense.  We  must  understand  Roger  Williams' 
conception  of  tolerance  if  we  would  understand  the  mean- 
ing of  constitutional  freedom  of  speech  and  press,  es- 
pecially on  the  subject  of  religion. 

The  colony  at  Providence  undertook  to  define  and  defend 
human  liberty  in  matters  of  religion,  instead  of  that  "lib- 
erty of  the  gospel"  by  which  others  sought  to  dominate 
in  temporal  affairs.  Roger  Williams  and  his  followers 
were  for  the  protection  of  complete  intellectual  freedom, 
and  in  1637  went  so  far  as  to  disfranchise  a  man  for  re- 
fusing liberty  of  conscience  to  his  wife^  in  not  permitting 
her  to  go  to  meeting  as  often  as  she  desired. 

During  the  following  years  there  raged  a  considerable 
American  controversy  over  the  subject  of  free  speech  in 
matters  of  religion.  In  this  controversy  Williams  pub- 
lished a  number  of  tracts  in  criticism  of  the  intolerance 
of  his  Massachusetts  and  Connecticut  neighbors  and  in 
defense  of  his  own  position  against  the  attacks  of  the 
Puritan  divines.  The  collection  of  Williams'  tracts  has 
been  republished  under  the  title  of  "The  Bloody  Tenet  of 
Persecution."  I  quote  from  the  London  edition  of  1848. 
Here  we  find  the  beginning  of  the  free  speech  controversy 
in  Rhode  Island,  in  Connecticut  and  in  the  United  States. 
For  over  a  century  this  controversy  raged  between  theo- 
cracy and  democracy,  and  between  free  speech  and  blas- 
phemy laws.  By  the  time  the  American  constitutions  were 
formed,  these  ideas  of  Roger  Williams  had  secured  the 
ascendency  over  the  idea  of  the  majority  among  the  earlier 
Massachusetts  and  Connecticut  colonists.  Under  the  lead- 
ership of  Jefferson  and  the  Virginia  Act  of  Toleration, 
our  American  constitutions  recorded  the  people's  verdict 
in  favor  of  the  contentions  of  Roger  Williams  for  a  separa- 
tion of  church  and  state,  and  in  favor  of  free  speech  for 

•  Bloody  Tenet  of  Persecution,  p.  28 ;  also :  Records  of  the  Colony 
of  Rhode  Island,  p.   16. 


430  BLASPHEMY 


all  controversies  over  religion.  To  understand  the  sig- 
nificance of  that  new  constitutional  policy  of  freedom  of 
discussion,  we  must  compare  the  idea  of  the  earlier  colon- 
ists with  those  later  and  contrary  ideas  which  found  ex- 
pression in  the  constitutions  of  Connecticut  and  of  the 
United  States. 

Truth  vs.  Peace. 

In  his  discourses  Williams  personified  the  two  sets  of 
ideas  under  the  form  of  a  dialogue  between  Peace  and 
Truth..  These  woi'ds  really  symbolized  the  conflict  quite 
perfectly.  The  friends  of  censorship  and  repression  al- 
ways mal^e  their  justification  to  depend  upon  the  impor- 
tance of  immediate  and  transient  peace-requirements.  In 
the  interests  of  this  immediate  peace  they  are  willing  to 
suppress  irritating  claims  of  truth,  and  to  ignore  the  more 
remote  and  less  apparent  advantages  of  intellectual 
freedom. 

The  friends  of  free  speech  always  place  the  emphasis 
upon  the  relatively  greater  importance  to  be  attached  to 
claims  of  truth.  In  consequence  of  this  different  valua- 
tion, the  friends  of  truth  say  that  for  its  sake  we  must  take 
some  chances  on  disturbing  the  immediate  peace,  but  we 
believe  that  in  the  long  run  peace  will  be  more  lasting, 
because  more  intelligently  conditioned,  where  all  claims  of 
truth  are  given  full  freedom  to  be  heard. 

The  early  Connecticut  settlers  had  the  absolute  and  only 
divine  truth,  and  wanted  only  "the  liberty  of  the  gospel." 
Therefore,  in  a  conflict  between  mere  heretical  claims  of 
truth  and  their  own  absolute  truth  and  peace  of  mind, 
they  always  decided  in  favor  of  the  latter.  The  Ehode 
Island  colonies  were  perhaps  equally  certain  that  they 
possessed  the  absolute  truth,  but  disagreed  with  their  neigh- 
bors as  to  methods  of  propagating  truth.  They  placed 
emphasis  on  free  speech  for  all,  as  the  very  best  means 
of  establishing  truth  more  perfectly  in  the  minds  of  men. 
The  Connecticut  and  Massachusetts  colonists  placed  their 
confidence  in  the  efficacy  of  forceful  suppression  of  "error." 
A  more  modern  conception  is  that  all  claims  of  truth  should 
be  tolerated  because  none  of  us  can  have  the  absolute  truth ; 
because  all  "truth"  is  but  a  partial  and  incomplete  aspect 


WILLIAMS,     MADISON,     JEFFERSON  431 

of  the  absolute  truth  and  is  a  relative  and  a  purely  per- 
sonal concept. 

In  order  to  make  clear  the  conflict  between  the  ideas 
of  tolerance  entertained  by  Roger  Williams,  and  embodied 
in  the  Federal  and  the  Connecticut  constitutions,  and  those 
views  entertained  by  earlier  colonists  as  embodied  in  the 
blasphemy  statute  of  1642,  it  becomes  necessary  to  give 
a  more  thorough  portrayal  of  Williams'  contention,  even 
at  the  risk  of  becoming  tiresome. 

The  Prosecution  is  Breach  of  the  Peace. 

When  Williams  was  told  that  he  erred  in  defending  the 
rights  of  those  who  expressed  themselves  with  such  "ar- 
rogance an(l  impetuousness  as  of  itself  tended  to  the  dis- 
turbance of  the  peace,"  he  drew  the  line  between  spiritual 
peace  and  civil  peace.  He  pointed  out  how  a  company  of 
men  might  "hold  disputations,  and  in  matters  concerning 
their  society  may  dissect,  divide,  break  into  schism  and 
factions,  sue  and  implead  each  other  at  the  law,  wholly 
break  up  and  dissolve  into  pieces  and  nothing,  and  yet  the 
peace  of  the  city  not  be  in  the  least  measure  impaired  or 
disturbed."  Citing  other  illustrations,  he  concludes :  "And 
notwithstanding  those  spiritual  oppositions  in  point  of 
worship  and  religion,  yet  hear  we  not  of  the  least  noise, 
nor  heed  we,  if  men  keep  but  the  bond  of  civility,  of  any 
civil  breach,  or  breach  of  civil  peace  among  them,  and  to 
persecute  God's  people  then  for  religion,  that  only  was  a 
"breach  of  civilty  itself." 

He  classifies  his  opponents  with  satanic  accusers  in  these 
words:  "'Which  charge  [that  dissenters  are  arrogant  and 
impetuous],  together  with  that  of  obstinacy,  pertinacity, 
pride,  troublers  of  the  City,  etc.,  Satan  commonly  loads  the 
meekest  of  the  saints  and  witnesses  of  Jesus  with"  (p.  49). 
This  he  justifies  by  reference  to  the  Bible.  Thus  he  makes 
plain  that  he  does  not  intend  to  heed  the  cry  of  fear  of 
disturbing  the  peace,  which  is  too  easy  a  pretense  in  the 
hands  of  persecutors. 

I  will  now  quote  some  of  this  dialogue  between  Peace 
and  Truth  which  will  show  that  Foger  Williams  believed 
in  tolerance  even  for  irritating  disputation.  Instead  of 
encouraging  the  intolerant  spirit  by  suppressing  the  irri- 


432  BLASPHEMY 

tating  speech,  his  theory  encouraged  tolerance  by  punish- 
ing those  whose  intolerance  induced  them  to  disturb  the 
civil  peace  by  usin^  force  to  suppress  irritating  utterances. 
"Truth"  continues  thus :  "God's  people,  in  delivering  the 
mind  and  will  of  God  concerning  the  kingdoms  and  civil 
states  where  they  have  lived,  have  seemed  in  all  show  of 
common  sense  and  rational  policy,  if  men  look  not  higher 
with  the  eye  of  faith,  to  endanger  and  overthrow  the  very 
civil  state,  as  appeareth  by  all  Jeremiah's  preaching  and 
counsel  to  King  Zedekiah,  his  princes  and  people,  insomuch 
that  the  charge  of  the  princes  against  Jeremiah  was  that 
he  discouraged  the  army  from  fighting  against  the  Baby- 
lonians, and  weakened  the  land  from  its  own  defense ;  and 
this  charge,  in  the  eye  of  reason,  seemed  not  to  be  un- 
reasonable or  unrighteous,  and  yet  in  Jeremiah  no  arro- 
gance, nor  impetuousness." 

Actual  vs.  Constructive  Disturbance. 

"Lastly  [says  Truth]  God's  people,  by  their  preaching, 
disputing,  etc.,  have  been,  though  not  the  cause,  yet  acci- 
dentally the  occasion  of  great  contentions  and  divisions, 
yea,  tumults  and  uproars  in  towns  and  cities  where  they 
have  lived  and  come;  and  yet  neither  their  doctrine  nor 
themselves  arrogant  nor  impetuous,  however  so  charged: 
for  thus  the  Lord  Jesus  discovereth  men's  false  and  secure 
suppositions,  Luke  xii,  51 ;  'Suppose  ye  that  I  am  come  to 
give  peace  on  earth?  I  tell  you,  nay;  hut  rather  division; 
for  from  henceforth  shall  there  he  five  in  one  house  divided, 
three  against  tico,  and  two  against  three,  the  father  shall 
he  divided  against  the  son  and  the  son  against  the  father, 
etc.  And  thus  upon  the  occasion  of  the  apostles'  preaching 
the  kingdom  and  worship,  of  God  in  Christ,  were  most  com- 
monly uproars  and  tumults  wherever  they  came.  For  in- 
stance, those  strange  and  monstrous  uproars  at  Iconium, 
at  Ephesus,  at  Jerusalem,  Acts  xiv,  4;  Acts  xix,  29,  40; 
Acts  xxi,  30,  31."  *  *  * 

"I  acknowledge  that  such  may  be  the  way  and  manner 
of  holding  forth,  either  with  railing  or  reviling,  daring 
or  challenging  speeches,  or  with  force  of  arms,  swords, 
guns,  prisons,  etc.,  that  it  may  not  only  tend  to  break,  but 
may  actually  break  the  civil  peace  or  peace  of  the  city. 


WILLIAMS,,     MADISON,     JEFFERSON  433 

"Yet  these  instances  propounded  are  cases  of  great  op- 
position and  spiritual  hostility  and  occasions  of  breach  of 
civil  peace;  and  yet  as  the  borders,  or  matter,  were  of 
gold,  so  the  specks,  or  manner  (Cantic.  i.  [II])  were  of 
silver :  both  matter  and  manner  pure,  holy,  peaceable,  and 
inoffensive. 

"Moreover,  I  answer,  that  it  is  possible  and  common 
for  persons  of  soft  and  gentle  nature  and  spirits  to  hold 
out  falsehood  with  more  seeming  meekness  and  peaceable- 
ness,  than  the  Lord  Jesus  or  his  servant  did  or  do  hold 
forth  the  true  and  everlasting  gospel.  So  that  the  answerer 
would  be  requested  to  explain  what  he  means  by  this  ar- 
rogant and  impetuous  holding  forth  of  any  doctrine,  which 
very  manner  of  holding  forth  tends  to  break  civil  peace, 
and  comes  under  the  cognizance  and  correction  of  the  civil 
magistrate,  lest  he  build  the  sepulchre  of  the  prophets, 
and  say,  If  we  had  teen  in  the  Pharisee's  days,  the  Roman 
emperor's  days,  or  the  bloody  Marian  days,  we  would  not 
have  been  partakers  tcith  them  in  the  blood  of  the  prophets, 
Matt,  xxiii,  30,  n^ho  were  charged  with  arrogance  and  im- 
petuousness."  *  *  * 

"Truth  [continuing].  I  answer:  When  a  kingdom  or 
state,  town  or  family,  lies  and  lives  in  the  guilt  of  a  false 
god,  false  Christ,  false  worship,  no  wonder  if  sore  eyes 
be  troubled  at  the  appearance  of  the  light,  be  it  never  so 
sweet.  Ko  wonder  if  a  body  full  of  corrupt  humors  be 
troubled  at  strong,  though  wholesome,  physic — if  persons 
sleepy  and  loving  to  sleep  be  troubled  at  the  noise  of  shrill, 
though  silver,  alarums.  No  wonder  if  Adonijah  and  all 
his  company  be  amazed  and  troubled  at  the  sound  of  the 
right  heir.  King  Solomon,  1  Kings  i  [41,  49] — if  the  hus- 
bandmen were  troubled  when  the  Lord  of  the  vineyard 
sent  servant  after  servant,  and  at  last  his  only  son,  and 
they  beat,  and  wounded,  and  killed  even  the  son  himself,  be- 
cause they  meant  themselves  to  seize  upon  the  inheritance, 
unto  which  they  had  no  right,  Matt,  xxi,  38.  Hence  all 
those  tumults  about  the  apostle  in  the  Acts,  etc.  Whereas, 
good  eyes  are  not  so  troubled  at  light ;  vigilant  and  watch- 
ful persons,  loyal  and  faithful,  are  not  so  troubled  at  the 
true,  no,  nor  at  a  false  religion  of  Jew  or  Gentile. 


434  BLASPHEMY 


"Secondly.  Breach  of  civil  peace  may  arise  when  false 
and  idolatrous  practices  are  held  forth,  and  yet  no  breach 
of  civil  peace  from  the  doctrine  or  practice,  or  the  manner 
of  holding  forth,  hut  from  that  wrong  and  preposterous 
way  of  suppressing,  preventing,  and  extinguishing  such 
doctrine  or  practices  by  weapons  of  wrath  and  blood,  whips, 
stocks,  imprisonments,  banishment,  death,  etc.;  by  which 
men  commonly  are  persuaded  to  convert  heretics,  and  to 
cast  out  unclean  spirits,  which  only  the  finger  of  God  can 
do,  that  is,  the  mighty  power  of  the  Spirit  in  the  word."' 

It  is  believed  that  this  makes  it  plain  that  Roger  Wil- 
liams repudiated  the  idea  that  punishment  should  be  in- 
flicted upon  a  speaker  for  a  speculative  opinion  about  the 
ill  tendency  of  his  utterance,  and  that  the  only  ill  tendency 
which  should  come  within  the  cognizance  of  the  criminal 
courts  was  the  actually  demonstrated  tendency  of  intoler- 
ance in  the  listener,  but  only  if  he  should  allow  it  to  ex- 
press itself  in  actual  overt  acts  of  disorder  against  the 
civil  peace.  Williams'  view  was  thus  in  harmony  with 
those  of  the  English  Dissenters  already  quoted.  This  view 
finally  prevailed  in  our  constitutions  and  becomes  authori- 
tative as  to  the  meaning  free  speech  upon  religious  subjects. 

Madison  and  Virginia  Liberty. 

Virginia  is  another  state  in  which  we  may  see  the  con- 
troversy for  religious  liberty  developing  in  such  a  manner 
as  to  shed  light  upon  the  meaning  that  should  be  given  to 
our  constitutional  guarantees.  The  leaders  of  the  move- 
ment in  Virginia  were  James  Madison  and  Thomas  Jeffer- 
son. The  opponents  were  mainly  those  of  the  Episcopalian 
faith,  that  being  originally  the  established  church  of 
Virginia. 

Madison  as  a  boy  had  been  shocked  by  the  sight  of  per- 
secution, and  so  became  a  libertarian  in  spite  of  his  wholly 
orthodox  environment  and  education.  In  the  Virginia 
Convention  of  1776  he  was  among  its  youngest  members. 
George  Mason  drew  the  declaration  of  rights  which  in- 
cluded the  following  on  the  subject  of  toleration : 

"That  religion  or  the  duty  which  we  owe  to  our  Creator, 
and  the  manner  of  discharging  it,  can  be  directed  only  by 


•  The  Bloody  Tenet  of  Persecution,  pp.  48-53. 


WILLIAMS,     MADISON,    JEFFERSON  435 

reason  and  conviction,  not  by  force  or  violence;  and  there- 
fore, that  all  men  should  enjoy  the  fullest  toleration  in  the 
exercise  of  religion,  according  to  the  dictates  of  conscience, 
unpunished  and  unrestrained  by  the  magistrate,  unless 
under  the  color  of  religion  any  man  disturb  the  peace,  the 
happines  or  safety  of  society,  and  that  it  is  the  mutual 
duty  of  all  to  practice  Christian  forbearance,  love,  and 
charity  toward  each  other." 

To  those  who  do  not  make  intelligent  discriminations 
between  mere  tolerance  and  a  guaranteed  liberty;  or  be- 
tween actual  and  constructive  breaches  of  the  peace;  or 
the  uncertainties  of  disturbing  "happiness"  and  the  cer- 
tainties in  the  criteria  of  guilt  essential  to  "law,"  might 
readily  have  been  content  to  accept  the  foregoing  declara- 
tion and  smooth  sounding  phrases  as  quite  adequate.  Not 
80  with  Madison. 

Let  me  tell  the  story  in  the  words  of  Gaillard  Hunt,  the 
editor  of  "The  Writings  of  Madison."  He  says:  "Almost 
alone  in  this  assemblage  of  wise  men  Madison  saw  the 
fundamental  error  contained  in  these  words.  According  to 
his  belief  there  could  properly  be  no  recognition  of  reli- 
gious rights  of  tolerance;  no  man  could  properly  be  grant- 
ed permission  to  worship  God  according  to  the  dictates  of 
his  conscience,  for  this  was  every  man's  right.  Moreover, 
the  clause  might  easily  be  so  twisted  as  to  oppress  religious 
sects,  under  the  excuse  that  they  disturbed  *the  peace, 
the  happiness,  or  safety  of  society.*  Therefore,  he  offered 
as  an  amendment  this  substitute: 

"That  religion,  or  the  duty  we  owe  our  Creator,  and  the 
manner  of  discharging  it,  being  under  the  direction  of  rea- 
son and  conviction  only,  not  of  violence  or  compulsion,  all 
men  are  equally  entitled  to  the  full  and  free  exercise  of  it, 
according  to  the  dictates  of  conscience;  and  therefore  that 
no  man  or  class  of  men  ought  on  account  of  religion  to  be 
invested  with  peculiar  emoluments  or  privileges,  nor  sub- 
jected to  any  penalties  or  disabilities,  unless  under  color 
of  religion  the  preservation  of  equal  liberty  and  the  exist- 
ence of  the  State  be  manifestly  endangered." 

If  this  clause  had  been  adopted  the  struggle  for  religious 
liberty  in  Virginia  would  have  been  ended.    Mason,  how- 


436  BLASPHEMY 


ever,  adopted  part  of  the  amendment,  so  as  to  eliminate 
the  word  tolerance,  but  did  not  adopt  that  part  which  in- 
sisted upon  equality,  such  as  an  established  church  alv^'ays 
destroys,  especially  in  the  matter  of  financial  support,  even 
though  bare  toleration  be  granted  to  others.  As  the  clause 
came  forth  and  was  adopted  it  read  as  follows : 

"That  religion,  or  the  duty  we  owe  to  our  Creator,  and 
the  manner  of  discharging  it,  can  be  directed  only  by  rea- 
son and  conviction,  not  by  force  or  violence,  and  therefore 
all  men  are  equally  entitled  to  the  free  exercise  of  religion, 
according  to  the  dictates  of  conscience ;  and  that  it  is  the 
mutual  duty  of  all  to  practice  Christian  forbearance,  love, 
and  charity  toward  each  other." 

Madison's  amendment  was  too  far  a  variation  from  the 
former  practices  of  the  colony,  to  be  then  adopted.  The 
last  declaration  did  not  prohibit  state  support  of  the  clergy, 
nor  did  it  provide  any  means  of  compelling  forbearance. 
However,  the  seed  had  been  sown  and  bore  fruit  later. 
Eight  years  had  elapsed  when  Madison  found  himself  a 
member  of  the  House  of  Delegates  in  1784.  Following  the 
Revolution,  a  great  decline  as  to  religious  observances 
came  into  existence.  This  furnished  a  seeming  "moral" 
justification  for  the  desire  of  the  clergy  to  be  supported 
by  the  state.  Patrick  Henry  introduced  a  bill  for  levying 
a  tax  to  support  teachers  of  Christian  religion.  The  in- 
fluential members  mostly  supported  the  bill.  All  that  Madi- 
son and  his  friends  could  do  was  to  secure  a  postponement 
so  as  to  get  time  to  make  public  opinion.^ 

At  the  request  of  others  Madison  drew  up  a  "Memorial 
and  Remonstrance  to  the  Honorable  General  Assembly  of 
the  Commonwealth  of  Virginia"  against  the  bill.  The  re- 
monstrance found  so  many  signatures  that  in  the  session 
of  1785,  the  bill  introduced  by  Patrick  Henry  was  over- 
whelmingly defeated.  It  is  well  for  our  purpose  that  we 
reproduce  a  part  of  this  remonstrance  which  deals  with 
equality  before  the  law  as  bearing  upon  the  construction 
of  our  constitutional  guarantees.  In  this  Memorial  the 
remonstrants  object :  "Because  the  bill  violates  that  equal- 

*  So  far  I  have  followed  Hunt.     See :    James  Madison  and  Religious 
Liberty.     Ann.  Rep.  of  Amer.  Hist.  Ass.  v.  1,  pp.  165  to  171,  1901. 


WILLIAMS^     MADISON,     JEFFERSON  437 

ity  which  ought  to  be  the  basis  of  every  law;  and  which 
is  more  indispensable,  in  proportion  as  the  validity  or  ex- 
pediency of  any  law  is  more  liable  to  be  impeached.  'If 
all  men  are,  by  nature,  equally  free  and  independent'  all 
men  are  to  be  considered  as  entering  into  society  on  equal 
conditions,  as  relinquishing  no  more,  and  therefore  retain- 
ing no  less,  one  than  another,  of  their  natural  rights ;  above 
all  are  they  to  be  considered  as  retaining  an  'equal  title  to 
the  free  exercise  of  religion  according  to  the  dictates  of 
conscience/  Whilst  we  assert  for  ourselves  a  freedom  to 
embrace,  to  profess,  and  to  observe  the  religion  which  we 
believe  to  be  of  divine  origin,  we  cannot  deny  an  equal 
freedom  to  those  whose  minds  have  not  yet  yielded  to  the 
evidence  which  has  convinced  us.  If  this  freedom  be 
abused,  it  is  an  offense  against  God,  not  against  man.  To 
God,  therefore,  and  not  to  man,  must  an  account  of  it  be 
rendered."* 

Jefferson  and  Toleration. 

This  agitation  against  a  state  supported  clergy  prepared 
the  way  for  that  true  religious  liberty  which  Madison  had 
sought  in  vain  to  have  incorporated  in  the  Bill  of  Rights 
in  1776.  Taking  advantage  of  this  changed  and  liberalized 
sentiment,  Madison  completed  his  victory  by  introducing 
the  famous  bill  for  religious  liberty  which  was  prepared  by 
Jefferson.  Of  course  there  were,  and  are  now,  throughout 
the  United  States  many  who  disapprove  of  religious  liberty. 
However,  it  is  written  into  our  constitutions  and  should 
be  maintained  by  our  courts  until  the  constitutions  are 
amended.  Since  the  opinions  of  men  like  Rogers  Williams, 
James  Madison  and  Thomas  Jefferson  were  written  into 
our  constitutional  guarantees,  their  opinions  become 
authoritative  on  matters  of  interpretation,  even  though  in- 
dividual judges  may  disagree  as  to  the  expediency  of  this 
policy.  On  this  account  it  becomes  worth  while  to  repro- 
duce their  opinions  in  such  an  argument  as  this.  Accord- 
ingly, the  present  essential  part  of  the  Virginia  Resolution 
follows : 

"To  suffer  the  civil  magistrate  to  intrude  his  power  in 

*  Memorial  and   Remonstrance,  p.  7. 


438  BLASPHEMY 


the  field  of  Opinion,  or  to  restrain  the  profession  or  propa- 
gation of  principles  on  supposition  of  their  ill  tendency^ 
is  a  dangerous  fallacy,  which  at  once  destroys  all  liberty, 
because  he,  being  of  course  judge  of  that  tendency,  will 
make  his  opinions  the  rule  of  judgment,  and  approve  or 
condemn  the  sentiments  of  others  only  as  they  shall  square 
with  or  differ  from  his  own.  It  is  time  enough  for  the 
rightful  purpose  of  Civil  Government  for  its  officers  to 
interfere  when  principles  break  out  into  overt  acts  against 
peace  and  good  order."^ 

It  is  important  to  acquire  a  clear  view  of  the  difference 
in  the  concept  of  mere  religious  toleration,  as  expressed 
in  the  first  declaration  of  George  Mason,  and  the  concept 
of  Jefferson,  as  expressed  in  the  final  resolution.  The  for- 
mer manifestly  expressed  only  revocable  tolerance,  limited 
by  the  whim  or  caprice  of  any  Court  which  might  declare 
the  "peace,  the  happiness,  or  safety  of  society"  to  be  in 
danger.  By  using  the  disjunctive  "or"  and  especially  by 
including  the  word  "happiness,"  it  was  evidently  designed 
that  mere  unpleasant  and  undefined  psychologic  tendencies 
should  be  a.  sufficient  justification  for  abridging  intellectual 
freedom.  Jefferson  demanded  that  only  overt  acts  of  dis- 
order resulting  from  speech  should  be  punishable. 

Thomas  Jefferson  in  his  "Notes  on  the  State  of  Virginia" 
devotes  a  chapter  to  the  subject  of  religion.  He  reviews 
the  past  laws  for  persecution  and  indicates  the  changes 
that  have  been  wrought.  As  further  indicating  his  in- 
sistence upon  actual  and  material  injury  as  criteria  of 
the  jurisdiction  of  the  magistrate,  he  says :  "The  legitimate 
powers  of  government  extend  to  such  acts  only  as  are 
injurious  to  others.  But  it  does  me  no  injury  for  my 
neighbor  to  say  there  are  twenty  gods  or  no  God.  It  neither 
picks  my  pocket  nor  breaks  my  leg.""^ 

Jefferson's  concept,  as  expressed  in  the  Virginia  Act  of 
Toleration,  and  amplified  in  the  quoted  portion  of  his 
Notes  on  Virginia,  expresses  a  very  different  concept  from 
that  of  Blackstone  and  the  prior  English  courts.  Jefferson's 
is  the  concept  of  an  unabridgable  mental  liberty.     Here 


•Watson  on  The  Constitution,  v.  2,  p.   1379. 
*  P.  231 — second  edition.  , 


WILLIAMS^     MADISON^     JEFFERSON  439 

no  one  may  be  punished  for  the  expression  of  any  idea 
whatever,  merely  as  a  disapproved  idea,  nor  on  the  basis 
of  any  theoretic  evil  psychologic  tendency  imag:ined  to  arise 
therefrom.  Here  we  have  a  positive  and  si>ecific  denial  of 
the  right  to  punish  any  opinion  whatever,  on  the  mere  basis 
of  a  supposed  ill  tendency.  No  discretion  is  allowed  to 
interfere  according  to  whether  the  opinion  is  disapproved 
theology,  or  concerns  the  politeness  of  style  in  which  a 
theologic  opinion  is  expressed.  The  magistrate  cannot 
interfere  until  opinions  "break  out  into  overt  acts  against 
peace  and  good  order."  This,  of  course,  is  the  essence  of 
making  actual  and  mateial  injuiy  the  basis  of  criminality. 
Tliis  declaration  of  the  meaning  of  religious  liberty  was 
adopted  in  Virginia  in  1785,  and  was  the  forerunner,  and 
so  measurably  interpretive,  of  the  subsequent  constitu- 
tional provisions  for  a  separation  of  church  and  state,  for 
religious  liberty  and  for  unabridged  freedom  of  speech 
and  press.    (See:  Reynolds  v.  U.  S.,  98  U.  S.  162.) 


CHAPTER  XXII. 
CHRISTIANITY  AND  THE  LAW. 

Thus  far  we  have  seen  that  the  real  motive  for  blasphemy- 
laws  was  the  protection  of  the  privileges  and  prerogatives 
of  the  privileged  class.  The  moralistic  justification  for 
such  persecution  was  that  to  question  the  established  reli- 
gion was  a  denial  of  the  claimed  source  of  authority  in  the 
prevailing  theocracy,  and  so  tended  to  disturb  the  peace- 
able enjoyment  of  privileges  and  prerogatives  of  those  who 
governed,  and  also  tended  to  destroy  the  government  it- 
self. The  better  to  sustain  their  undemocratic  advantage, 
it  was  suported  by  a  claim  of  divine  right,  first  through 
the  mediation  of  the  Pope,  and  later  directly  and  without 
any  intermediary.  Thus  blasphemy  became  necessarily 
viewed  as  a  sort  of  lesser  treason,  and  official  Christianity 
was  the  supreme  part  of  the  law.  Canon  law  was  deemed 
the  foundation  stone  of  the  common  law. 

It  has  been  shown  that  the  divine  right  dogma,  for  the 
protection  of  privileges  and  prerogatives  are  wholly  in- 
consistent with-  our  more  democratic  conceptions.  It  is 
our  theory  that  laws  and  governments  come  up  from  out 
of  the  people,  and  not  down  from  above  the  populace.  This 
is  wholly  inconsistent  with  blasphemy  prosecutions.  How- 
ever, against  this  contention  there  are  some  American  de- 
cisions which  follow  the  early  British  precedents  in  hold- 
ing that  Christianity  is  a  parcel  of  the  law  of  the  land.^ 
It  now  remains  to  destroy  the  value  of  such  American  pre- 
cedents by  the  more  thorough  examination  of  the  reasoning, 
the  facts  and  a  modem  British  precedent  which  supports 
the  contrary  view.  The  questions  then  are,  first :  from  the 
more  enlightened  and  democratic  viewpoint  can  it  be  ad- 
mitted that  Christianity  was  ever  properly  a  part  of  our 
law?  Second:  if  so,  then  we  still  ask  if  that  concept  was 
not  prohibited  by  the  general  intellectual  development  as 
expressed  by  our  constitutional  guarantees  of  religions  lib- 
erty, equality  and  free  speech? 

'  Mahoney  v.  Cook,  26  Pa.  St.  347. 
Sparhawk  v.  Union  Pass.  R.  Co.,  54  Pa.  St.  406. 
Charleston  v.  Benjamin,  2  Strobh.  L.  So.  Car.  521,  49  Amer.  Dec.  608, 

440 


christianity   and   tub   law  441 

Church  and  State. 

It  appears^  that  centuries  ago  the  ecclesiastical  courts 
probably  attended  to  the  greater  part  of  the  offences  that 
were  penalized  in  that  relatively  simple  social  order  under 
their  jurisdiction.  The  reason  for  this  is  plain  from  the 
theologic  viewpoint.  The  Rev.  J.  Dodd^  expresses  the  old 
conception  thus :  "All  law  in  the  abstract,  emanated  from, 
and  is  based  upon,  the  originating  will  of  God.  *By  me 
Kings  reign,'  saith  Wisdom^  'and  Princes  decree  justice.' 
And  St.  Paul,  too,  puts  forward  the  principle  very  prom- 
inently to  the  law-giving  people  to  whom  he  addressed  his 
epistle.  'There  is  no  power  but  of  God.'  'The  powers  that 
be,'  i.e.  whether  of  legislation  or  administration  'are  or- 
dained of  God.' " 

For  centuries  the  effort  was  to  apply  this  literally.  So 
came  the  legal  maxim  that  "The  best  rule  is  that  which 
advances  religion."  Thus  also  do  Nov,  Blackstone  and 
others  tell  us  that  statutes  contravening  the  divine  law 
are  void.^ 

Three  Stages  of  Evolution. 

Roughly  speaking  the  controversy  over  the  relation  of 
the  Church  and  State  may  be  divided  into  three  stages. 
In  the  first  stage  there  is  almost  a  universal  acquiescence 
in  the  supremacy  of  the  ecclesiastical  and  theologic  author- 
ity. Here  the  theory  is  that  the  State  is  but  the  secular 
arm  of  the  Church,  for  establisliing  the  government  and 
will  of  God  upon  earth,  and  all  authority  comes  from  on 
high,  from  above  the  people.  The  King  is  practically  the 
creature  of  the  Pope  or  priests  and  a  "God  upon  the  earth." 
Canon  law  is  authoritative  in  the  determination  of  com- 
mon-law. The  chief  function  of  the  King  is  to  aid  and 
serve  the  clergy,  or  as  they  would  say  to  serve  the  religion 
of  the  only  true  God. 

In  the  second  stage  of  this  development  the  union  of 
Church  and  State  is  theoretically  just  as  thorough  and 
complete  as  before,  but  the  emphasis  is  reversed.     Now 

•  From  Stephen's  Hist.  Crim.  Law  of  England,  v.  2,  p.  400  to  end. 

•  Hist,  of  Canon  Law,  p.  6. 

•  Prov.  VHL  IS. 

■  Broom's  Legal  Maxims.  Eighth  Edit.  p.  13  and  authorities  cited. 


442  BLASPHEMY 

the  secular  autliority  is  of  recognized  dominance,  and  the 
Church  becomes  a  mere  tool  of  the  secular  power.  Instead 
of  the  throne  being  subordinated  to  the  priesthood,  we  now 
find  the  priesthood  subject  to  the  government,  though  still 
recognized  as  part  of  it.  Here  the  authority  and  the  in- 
fluence of  the  spiritual  aristocrats  has  become  more  or  less 
subordinated  to  the  power  of  the  temporal  aristocrats,  or 
at  worst  it  is  equal  and  co-ordinate.  The  transition  is  one 
away  from  the  power  of  God,  and  the  authority  of  his 
"mouthpieces"  toward  the  supremacy  of  those  possessing 
the  greater  economic  power  and  tlie  authority  of  the  secular 
phases  of  their  political  institutions.  Now  the  more  im- 
portant function  of  the  clergy  is  to  give  support  to  privi- 
leges and  prerogatives  of  secular  aristocrats. 

The  third  stage  finds  all  authority  of  God  and  of  the 
special  power  of  the  ecclesiasts  in  the  affairs  of  government 
as  such,  to  be  theoretically  repudiated  as  also  is  the  special 
authority  and  political  right  of  a  secular  aristocracy.  Now 
the  process  of  change  has  gone  to  its  logical  conclusion. 
Those  who  are  unprepared  for  this  complete  transforma- 
tion verbally  console  themselves  that  they  are  still  only 
the  new  intermediaries  between  God  and  those  who  exer- 
cise political  authority.  Such  affirm  that  the  'oice  of  the 
people  is  the  voice  of  God,  because  for  them  it  is  so  diffi 
cult  to  give  up  our  human  weaknesses  for  aristocratic  dis- 
tinctions founded  upon  the  claim  of  super -human  affilia- 
tions. Such  persons  still  prove  their  own  aristocracy  by 
insisting  that  their  religion  is  even  now  part  of  the  law. 
With  those  who  are  completely  emancipated  from  the 
medieval  mode  of  thinking,  political  authority  and  power 
from  above  the  people  has  been  supplanted  by  a  political 
power  and  authority  arising  wholly  and  purely  from  out 
of  the  people,  merely  as  human  beings,  not  as  agents  of 
Omnipotence.  This  is  the  road  from  theocracy  through 
secular  aristocracy  to  a  political  democracy.  Tliis  evolu- 
tion will  now  be  traced  in  our  juridical  history,  that  it  may 
receive  proper  recognition  in  the  interpretation  of  our 
constitutional  guarantees  of  intellectual  and  religious 
liberty. 


christianity   and   the   law  443 

Reason  vs.  Authority. 

We  have  already  exhibited  the  opposition  of  the  "dissent- 
ers" to  the  concept  that  the  more  orthodox  "Christianity 
is  a  part  of  the  law.  Parallel  with  this  was  a  gradual  in- 
crease in  the  judicial  curtailment  of  this  doctrine.  As 
early  as  1649,  Chief  Justice  Kebble  expressed  such  a  limi- 
tation in  these  words :  "You  say  well :  The  law  of  God  is 
the  law  of  England,  and  you  have  heard  no  law  else,  but 
what  is  consonant  to  tiie  laio  of  reason  ivhich  is  the  best 
law  of  God,  and  here  is  none  else  urged  against  you."* 
Thus  to  insist  upon  determining  the  law  of  God  by  reliance 
upon  reason  instead  of  relying  upon  ecclesiastical  author- 
ity, is  a  contradiction  of  the  predominant  judicial  attitude 
voiced  by  Blackstone,  and  it  is  the  entering  wedge  of  the 
process  of  secularization  and  of  democratization. 

Among  the  writers  of  legal  treatises  there  were  at  least 
two  conspicuous  critics  of  the  theory  that  Christianity  is 
part  of  the  law.  The  first  of  these  was  Major  John  Cart- 
right,  a  staunch  friend  of  the  American  Revolution  and 
of  freedom  of  speech."^  It  was  his  book  which  inspired 
Jefferson's  letter  upon  the  same  subject,  which  is  herein- 
after quoted.  In  the  same  year  (1823)  appeared  Richard 
Mence's  vigorous  criticism  of  this  doctrine.^ 

The  next  definite  limitation  that  I  find  imposed  upon 
the  concept  of  Christianity  as  part  of  British  law,  is  made 
in  Sixth  Report  of  the  Commissioners  on  Criminal  Law. 
They  say: 

To  remove  all  possibility  of  further  doubt  the  Commis- 
sioners on  Criminal  Law  have  thus  clearly  explained  their 
sense  of  this  celebrated  passage.  "The  meaning  of  the  ex- 
pression used  by  Lord  Hale  that  'Christianity  was  parcel 
of  the  laws  of  England,'  though  often  cited  in  subsequent 
cases,  has,  we  think,  been  much  misunderstood.  It  ap- 
pears to  us  that  the  expression  can  only  mean,  either  that 
as  a  great  part  of  the  securities  of  our  legal  system  consist 
of  judicial  and  official  oaths,  sworn  upon  the  Gospels,  Chris- 

•Lilburne's  Case,  4  Howell's  State  Trials,  1307. 
^The    English    constitution    produced    and    illustrated,    Lond.    1823, 
pp.  388-398. 
•Mence,  The  Law  of  Libel,  p.  321;  Edition  of  1824. 


444  BLASPHEMY 


tianity  is  closely  interwoven  with  our  municipal  law;  or 
that  the  laws  of  England,  like  all  municipal  laws  of  a 
Christian  country,  must  upon  principles  of  general  juris- 
prudence, be  subservient  to  the  positive  rules  of 
Christianity."^ 

The  next  instance  of  a  new  modification  was  made  by 
Lord  Coleridge  first  in  the  case  of  R.  v.  Pooley,  1857.  This 
was  reaffirmed  by  him  in  the  celebrated  prosecution  for 
blasphemy,  against  Charles  Bradlaugh  in  1882.  There 
it  is  said: 

"I  am  aware  that  a  more  severe  and  strict  view  of  the 
law  has  been  put  forth  by  persons  entitled  to  respect.  That 
any  attacks  upon  the  fundamental  principles  of  the  Chris- 
tian religion,  and  any  discussion  hostile  to  the  inspiration 
or  perfect  purity  of  the  Hebrew  Scripture  is,  however,  re- 
spectfully conducted,  against  the  law  of  the  land,  and  is 
a  subject  matter  for  prosecution.  As  at  present  advised, 
I  do  not  assent  to  that  view  of  the  law.  It  is  founded,  as 
it  seems  to  me,  upon  misunderstood  expressions  in  the  judg- 
ment of  great  judges  of  former  times,  who  have  said,  no 
doubt,  that  inasmuch  as  Christianity  is  in  a  sense  part  of 
the  law  of  the  land,  and  as  Christianity  adopts  and  assumes 
the  truth  in  some  sen^se  or  other ^  of  inspiration,  and  in 
some  sense  or  other  assumes  the  purity  of  the  Hebrew 
Scriptures,  anything  which  assails  the  truth  of  Christian- 
ity, or  asperses  the  purity  of  the  Hebrew  Scriptures,  how- 
ever respectful,  is  a  breach  of  the  law.  /  fail  to  see  the 
consequences  from  the  premises  because  you  may  attack 
anything  that  is  part  of  the  law  of  the  land,  in  respectful 
terms,  without  committing  a  crime  or  a  misdemeanor, 
otherwise  no  alteration  in  any  part  of  the  law  could  ever 
be  advocated  by  anybody.  Monarchy  is  part  of  the  law 
of  the  land ;  Primogeniture  is  part  of  the  law  of  the  land, 
and  deliberate  and  respectful  discussion  upon  the  first 
principles  of  government,  upon  the  principles  of  the  law 
of  inheritance,  upon  the  principles  which  should  govern 
the  union  of  the  sexes,  on  that  principle  so  far  as  I  can  see, 
would  be  an  indictable  libel.     The  consequences  seem  to 

•  Moxon's  Case,  2  Townsend's  Modern  Reports  390 ;  A.  D.  1840. 


CHRISTIANITY     AND     THE     LAW  445 

me  so  extreme  and  untenable  as  to  show  that  the  premises 
must  he  wrong}^ 

In  1863  there  came  on  another  branch  of  this  case  against 
the  co-defendants  Ramsey  and  Foote.  There  was  discussed 
(he  rule  that  anything  is  a  blasphemous  libel  simply  and 
without  more  because  they  question  the  truth  of  Christian- 
ity. The  court  said :  "I  repeat,  these  dicta  cannot  be  taken 
to  be  true  in  the  sense  in  which  it  was  true  when  these  dicta 
were  uttered,  that  Christianity  is  part  of  the  law  of  the 
land.  In  the  times  when  these  dicta  were  uttered,  Jews 
Roman  Catholics,  Non-conformists  of  all  sorts  were  under 
heaTy  disabilities  for  religion  and  were  regarded  as  mere- 
ly having  civil  rights."^^  It  might  also  have  been  men- 
tioned tht. '  while  the  Church  was  still  legally  established, 
England  ha  J  become  in  a  large  measure  democratized.  The 
King  and  the  courts  now  held  their  authority  from  the 
people,  and  not  from  God  either  directly  or  through  the 
priesthood. 

Next  in  order  comes  a  case  in  the  House  of  Lords  in 
1917.  Here  the  doctrine  that  Christianity  is  a  part  of  the 
law  of  the  land,  or  ever  was  properly  so,  is  repudiated.^^ 
This  will  be  referred  to  again  alter  we  have  reviewed  the 
parallel  evolution  in  America. 

Jefferson  vs.  Hale 

It  has  now  been  shown  that  Lord  Hale's  statement  that 
Christianity  is  parcel  of  the  laws  of  England  has  been 
much  discredited  in  recent  English  decisions.  It  remains 
to  trace  this  same  growth  in  America.  Thus  it  is  hoped 
to  destroy  the  last  vestige  of  reason  which  can  be  assigned 
in  support  of  blasphemy  laws. 

Jefferson  and  some  others  went  farther  than  the  English 
courts  in  attacking  Hale's  doctrine.  We  will  exhibit  these 
attacks,    made  upon  the    original  sources    antecedent  to 

"R.  V.  Bradlaugh,  15  Cox  Crim.  C.  217-225.      See  also:    Whorton, 

Criminal  Law,  v.  3,  pp.  2116-2118. 
"R.  V.  Ramsey  &  Foote,  1  Cababe  and  Ellis  Reports  (Nisi  Prius), 

p.  126. 
"Bowman  v.  Secular  Society,  Limited;  Law  Reports,  Appeal  CaseSr 

Part  IV,  pp.  406-478. 


446  BLASPHEMY 


Hale's  decision.     I  will  precede  Jefferson's  criticism  by 
that  of  an  anonymous  writer. 

He  says:  "I  have  examined  the  Year  Book  cited.  The 
passage  is  to  be  found  in  the  case  of  Humphrey  Bohun 
against  John  Broughton,  Bishop  of  Lincoln,  and  others — 
a  suit  for  disturbance  in  refusing  to  induct  Thomas  Young, 
presented  by  Bohun  to  the  living  of  Holborne,  in  the  coun- 
ty of  Middlesex.  The  bishop  pleads  that  on  the  same  day 
another  claimant,  to  wit,  John  Brown,  had  presented  his 
clerk,  Richard  Ewenson ;  that  the  law  of  the  Holy  Church 
in  such  case  is  that  until  the  contest  be  decided  by  judg- 
ment on  inquisition  in  a  suit  de  jure  patronatus  (on  the 
right  of  presentation),  the  ordinary  is  not  bound  to  admit, 
and  that  it  is  the  duty  of  the  two  contending  patrons  to 
institute  such  a  suit,  and  not  the  duty  of  the  ordinary. 
This  not  having  been  done  within  six  months,  it  becomes 
the  duty  of  the  ordinary  to  present  that  there  may  be  no 
vacancy.  The  sentence  quoted  is  Prisot's  opinion,  in  page 
40b  of  the  Year  Book.  The  translation  of  the  passage  is 
as  follows :  ^To  such  law  as  the  Holy  Church  hath  under 
ancient  record  (that  is  preserved  in  old  books;  the  French 
of  holy  scripture,  is  not  ancient  scripture,  but  sainte 
ecriture),  it  hecometh  us  to  give  credence;  for  this  is  com- 
mon law  (that  is,  this  constitutes  the  common  law  of  the 
church)  upon  which  common  law  all  other  laws  are  found- 
ed;  and  so,  sir,  loe  are  hound  to  acknowledge  the  law  of 
the  holy  church;  and  in  like  manner  they  are  hound  to 
acknowledge  our  law.  And,  sir,  if  it  appear  to  us  that  the 
hishop  has  acted  as  an  ordinary  would  have  acted  in  like 
case,   we   ought  to   acknowledge  it   as  good,  otherwise 

"I  was  glad  to  find  in  your  book  [so  wrote  Jefferson  to 
Major  John  Cartwright]  a  formal  contradiction,  at  length, 
of  the  judiciary  usurpation  of  legislative  powers;  for  such 
the  judges  have  usurped  in  their  repeated  decisions  that 
Christianity  is  a  part  of  the  common  law.  The  proof  of 
the  contrary,  which  you  have  adduced,  is  incontrovertible; 
to  wit,  that  the  common  law  existed  while  the  Anglo-Saxons 
were  yet  Pagans,  at  a  time  when  they  had  never  yet  heard 


"Cooper's  Law  of  Libel,  pp.  175-176. 


CHRISTIANITY     AND    THE    LAW  447 

the  name  of  Christ  pronounced,  or  knew  that  such  a  char- 
acter had  existed.  But  it  may  amuse  you  to  show  when 
and  by  what  means  they  stole  this  law  upon  us.  In  a  case 
of  qiiare  impedit,  in  the  Year  Book,  34  Henry  VI,  folio 
38  (1458),  a  question  was  made  how  far  the  ecclesiastical 
law  was  to  be  respected  in  a  common  law  court?  And 
Prisot,  chief  justice,  (c.  5)  gives  his  opinion  in  these  words: 
'A  tiel  lets  qii'Us  de  seint  ecfUse  ant  en  ancien  scripture, 
covient  d  iious  a  dormer  credence;  car  ceo  common  ley  sur 
quels  touts  manners  leis  sont  fondes.  Et  auxy,  sir,  nous 
sumiis  ohleges  de  conustre  lour  ley  de  saint  eglise,  et  sem- 
hlablement  its  sont  obliges  de  consnstre  nostre  Ley.  Et, 
sir,  si  poit  apperer  or  a  nous  que  Vevesque  ad  fait  come  un 
ordinary  fera  en  tiel  cas,  adong  nous  devons  ceo  adjuger 
bon,  ou  auterment  nemy/  &c.  See  s,  c,  Fitzhugh's  Abridge- 
ment qu.  imp.  89;  Brooke's  Abridgement,  qu.  imp.  12. 
Finch,  in  his  first  book,  c.  3.  is  the  first,  afterwards,  who 
quotes  this  case,  and  misstates  it  thus :  'To  such  laws  of  the 
the  churcli  as  have  warrant  in  holy  scripture,  our  law  giv- 
eth  credence ;'  and  cites  Prisot,  mistranslating  'ancien  scrip- 
ture' into  'holy  scripture';  whereas  Prisot  palpably  says, 
*to  such  laws  as  those  of  holy  church  have  in  ancient  lorit- 
ing,  it  is  proper  for  us  to  give  credence;'  to  wit,  to  their 
ancient  written  laws.  This  was  in  1613,  a  century  and  a. 
half  after  the  dictum  of  Prisot.  Wingate,  in  1658,  erects 
this  false  translation  into  a  maxim  of  the  common  law, 
copying  the  words  of  Finch,  but  citing  Prisot.  Wingate, 
max.  3,  and  Sliepard,  tit.  'religion,'  in  1675,  copies  the 
same  mistranslation,  quoting  the  Year  Book,  Finch  and 
Wingate.  Hale  expresses  it  in  these  words :  'Christianity 
is  parcel  of  the  laws  of  England,'  1  Ventris  293 ;  3  Kebble 
607;  but  quotes  no  authority.  By  these  echoings  and  re- 
echoings,  from  one  to  another,  it  had  become  so  established 
in  1728,  that  in  the  case  of  the  King  v.  Woolston,  2  Strange, 
834,  the  court  would  not  suffer  it  to  be  debated  whether 
to  write  against  Christianity  was  punishable  in  the  tem- 
poral courts  at  common  law.  Wood,  therefore,  409,  ven- 
tures still  to  vary  the  phrase,  and  say  'that  all  blasphemy 
and  profaneness  are  offenses  by  the  common  law,'  and 
cites  2  Strange;  then  Blackstone,  in  1763,  IV.  59,  repeats 


448  BLASPHEMY 


the  words  of  Hale,  that  'Christianity  is  part  of  the  com- 
mon law  of  England/  citing  Ventris  and  Strange;  and 
finally  Lord  Mansfield,  with  a  little  qualification,  in 
Evans'  case,  in  1767,  says  that  'the  essential  principles 
of  revealed  religion  are  parts  of  the  common  law,'  thus 
engulphing  Bible,  testament  and  all  into  the  common  law, 
without  citing  any  authority.  And  thus  we  find  this  chain 
of  authorities  hanging,  link  by  link,  one  upon  another,  and 
all  ultimately  upon  one  and  the  same  hook,  and  that  a 
mistranslation  of  the  words  'ancien  scripture,'  used  by 
Prisot.  Finch  quotes  Prisot ;  Wingate  does  the  same ;  Shep- 
pard  quotes  Prisot,  Finch,  and  Wingate;  Hale  cites  no- 
body. The  court,  in  Woolston's  case,  cites  Hale.  Wood 
cites  Woolston's  case;  Blackstone  quotes  Woolston's  case 
and  Hale;  and  Lord  Mansfield,  like  Hale,  ventures  it  on 
his  own  authority.  Here  I  might  defy  the  best  read  lawyer 
to  produce  another  scrip  of  authority  for  this  judiciary 
forgery;  and  I  might  go  on  further  to  show  how  some  of 
the  Anglo-Saxon  priests  interpolated  into  the  text  of  Al- 
fred's laws,  the  20th,  21st,  22d,  and  23d  chapters  of  Exodus, 
and  the  15th  of  the  Acts  of  the  Apostles,  from  the  23d  to 
the  29th  verses.  But  this  would  lead  my  pen  and  your 
patience  too  far.  What  a  conspiracy  this,  between  church 
and  state!!  Sing  tantararara,  rogues  all;  rogues  all; 
sing  tantararara,  rogues  all!"^^ 

More  potent  as  a  binding  authority  than  all  of  these  is 
the  official  declaration  of  the  United  States  under  the 
treaty-making  power. 

This  is  shown  by  a  "Treaty  of  Peace  and  Friendship, 
between  the  United  States  of  America  and  the  Bey  and 
subjects  of  Tripoli  of  Barbary,"  communicated  to  the  Sen- 
ate May  26,  1797.1^ 

''Article  2  [of  this  Treaty] :  As  the  government  of  the 
United  States  of  America  is  not  in  any  sense  founded  on 
the  Christian  Religion^  as  it  has  in  itself  no  character  of  en- 
mity against  the  laws,  religions,  or  tranquillity  of  Mussul- 

**  See  Appendix  to  Cooper's  Law  Libel,  p.  82 :  Jefferson's  Works,  v.  4, 
pp.  397-398;  Remsberg's  Six  Historic  Americans,  p.  83.  In  sending 
a  copy  of  the  Cartwright  letter  to  Cooper,  some  revisions  were  made. 

"American  State  Papers,  Class  I,  Foreign  Relations,  vol.  2,  p.  18; 
United  States  Statutes  at  Large,  vol.  8,  Foreign  Treaties,  p.  154. 


CHRISTIANITY     AND     THE     LAW  440 

mans;  and  as  the  said  states  never  entered  into  any  war, 
or  act  of  hostility  against  any  Mahometan  nation,  it  is  de- 
clared by  the  parties,  that  no  pretext,  arising  from  reli- 
gious opinions,  shall  ever  produce  an  interruption  of  the 
harmony  existing  between  the  two  countries."  Dr.  Philip 
Schaff  of  Union  Theological  Seminary,  N.  Y.,  says  that 
he  learned  "from  Dr.  Francis  Wharton  that  the  treaty  was 
framed  by  an  ex-Congregational  clergyman" ^^  and  not  by 
irreligious  men. 

Article  6  of  the  U.  S.  Constitution  provides:  "All 
treaties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land ; 
and  the  judges  of  every  state  shall  be  bound  thereby,  any- 
thing in  the  constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding." 

President  Jefferson  refused  to  issue  a  thanksgiving 
proclamation  because  he  regarded  "the  government  of  the 
United  States  as  interdicted  by  the  Constitution  from  inter- 
meddling with  religious  institutions,  their  doctrines,  dis- 
cipline or  exercises." 

In  Ohio  the  Supreme  Court  had  before  it  a  question  as 
to  the  validity  of  a  deed  executed  and  delivered  on  Sunday. 
The  court  accepted  as  good  English  law  the  rule  that  the 
Christian  religion  is  part  of  the  common  law.  After  quot- 
ing the  constitutional  guarantee  for  religious  liberty,  the 
court  said:  "It  follows  that  neither  Christianity  or  any 
other  system  of  religion  is  a  part  of  the  law  of  this  state. 
We  sometimes  hear  it  said  that  all  religions  are  tolerated 
in  Ohio ;  but  the  expression  is  not  strictly  accurate ;  much 
less  accurate  is  it  to  say  that  one  religion  is  a  part  of  our 
law  and  that  all  others  are  only  tolerated.  It  is  not  by 
mere  toleration  that  every  individual  is  protected  in  his 
belief  or  disbelief.  He  reposes  not  upon  the  leniency  of 
government  or  liberality  of  any  class  or  sect  of  men,  but 
upon  Ms  natural  indefeasible  rights  of  conscience."  *^ 

"Those  who  make  this  assertion  [that  Christianity  is 
part  of  the  law]  can  hardly  be  serious,  and  intend  the  real 
import  of  their  language.  If  Christianity  is  a  law  of  the 

"Church  and  State  in  the  United  States,      p.  41,  note  2. 
"Bloom  V.  Richards,  2  Ohio  St.  390. 


450  BLASPHEMY 


State  like  every  other  law,  it  must  have  a  sanction.  Ade- 
quate penalties  must  be  provided  to  enforce  obedience  to 
all  its  requirements  and  precepts.  No  one  seriously  con- 
tends for  any  such  doctrine  in  this  country,  or,  I  might  al- 
most say,  in  this  age  of  the  world.  The  only  foundation — 
rather,  the  only  excuse — for  the  proposition  that  Christian- 
ity is  part  of  the  law  of  this  country  is  the  fact  that  it  is 
a  Christian  country,  and  that  its  constitutions  and  laws 
are  made  by  a  Christian  people."^^ 

It  is  interesting  to  note  that  a  recent  decision  of  the 
House  of  Lords  goes  very  far  in  this  same  direction,  but 
under  very  great  difficulty.  In  the  face  of  the  admission 
that  a  mere  denial  of  any  part  of  Christianity  has  been 
very  often  declared  ta  be  blasphemy,  it  is  now  held  that 
this  was  not  a  correct  conception  of  the  law  "at  any  time." 
Likewise  the  oft  repeated  formula  that  Christianity  is  part 
of  the  law  has  been  deprived  of  about  all  practical  meaning. 
Those  interested  in  this  latest  English  development  will 
wish  to  read  a  keen  review  of  the  situation  by  Dean  R.  W. 
Lee,  entitled  "The  Law  of  Blasphemy."^^  After  reading 
that  very  penetrating  analysis  one  should  read  the  decision 
of  the  House  of  Lords,  which  provoked  it.^^  Our  American 
courts  can  easily  avoid  a  similar  embarrassment.  To  this 
end  we  need  only  to  rely  upon  the  common  sense  meaning 
and  the  historical  interpretation  of  our  constitutional  guar- 
antees of  religious  and  intellectual  liberty  Thus  we  must 
come  more  directly  and  more  conclusively  to  the  result  that 
Christianity  can  bear  no  legal  relationship  to  our  laws  and 
that  therefore  no  prosecution  can  be  here  maintained  to 
punish  blasphemy  in  any  of  its  aspects. 

"Board  of  Education  v.  Minor  23  Ohio  St.  211;  13  Amer.  Rep.  233. 

State  V.  Bott,  31  La.  Ann.  663;  33  Amer.  Rep.  224. 
**  Michigan  Law  Review,  v.  16,  pp.  149-157,  Jan.  1918. 
■•Bowman  v.  Secular  Society,  Ltd.,  Law  Reports,  Appeal  Cases,  Part 

IV,  pp.  406-478.    1917. 


THE  FREE  SPEECH  LEAGUE 

At  Albany,  New  York,  on  April  7,  1 9 1 1 ,  the 
Free  Speedi  League  was  incorporated.  The  incor- 
porators are:  President,  Leonard  D.  Abbott,  associate 
editor  of  Current  Literature:  Vice-president,  Brand 
Whitlock,  mayor  of  Toledo,  Ohio  ;  Lincoln  Steffens, 
leading  progressive  economist;  Bolton  Hall,  author  and 
lawyer ;  Gilbert  E.  Roe,  law-writer ;  Treasurer,  Dr. 
E.  B.  Foote,  author  of  medical  books;  Secretary, 
Theodore  Schroeder,  author  and  lawyer.  In  the 
articles  of  incorporation  the  purposes  of  the  Free 
Speech  League  are  declared  to  be  : 

"  The  principal  obje<5ts  for  which  said  corporation 
is  formed  are  as  follows,  viz :  By  all  lawful  means  to 
promote  such  judicial  construction  of  the  Con^tution 
of  the  United  States,  and  of  the  several  states,  and  of 
the  ^tutes  passed  in  conformity  therewith,  as  will 
secure  to  every  person  the  greatest  liberty  consistent 
with  the  equal  liberty  of  all  others,  and  especially  to 
preclude  the  punishment  of  any  mere  psychological 
offense;  and,  to  that  end,  by  all  lawful  means  to  op- 
pose every  form  of  govemmentzJ  censorship  over  any 
method  for  the  expression,  commimication  or  trans- 
mission  of  ideas,  whether  by  use  of  previous  inhibition 
or  subsequent  punishment;  and  to  promote  such  legis- 
lative enadtments  and  constitutional  amendments,  state  i 
and  national,  as  will  secure  these  ends."  The  officers 
are  all  unsalaried.  If  you  are  interested  send  a  con- 
tribution to 

THE  FREE  SPEECH  LEAGUE, 

56  East  59th  St.,  New  York  Gty 


/NTELLECTUAL   HOSPITALITY. 

By  Theodore  Schroeder. 

To  have  some  Intelligent  appreciation  of  how 
much  of  the  knowable  is  yet  unknown,  conduces  to 
that  humility  which  Is  the  beginning  of  wisdom.  To 
know  something  of  the  past  struggles  for  human  prog- 
ress conduces  to  an  appreciation  of  how  little  Is  prob- 
ably true  of  what  we  think  we  know.  Thus  to  see 
our  attainments  in  their  true  relations  to  past  beliefs 
and  their  probable  relation  to  future  knowledge,  con- 
duces to  a  true  measure  of  our  great  ignorance.  To 
have  this,  Is  to  be  without  censure,  because  without  a 
stupid  pride;  to  love  truth  more  than  our  vain  predis- 
positions ;  to  love  harmlessness  of  life  more  than  moral 
sentimentalism ;  to  be  free  from  phariseeism,  because 
knowing  the  diversity  and  uncertainty  of  standards;  to 
be  unafraid  of  new  evidence,  and  unoppressive  toward 
new  aJlegatlons  of  truth ;  to  be  controlled  by  a  selfish- 
ness of  so  high  sui  order  that  your  greatest  happiness 
comes  from  studying  all  problems  from  the  Impersonal 
viewpoint,  and  making  aU  judgments  by  Impersonal 
standards  ;  to  have  the  desire  to  be  right  d\yfdiyi  over- 
powering the  desire  that  others  esteem  us  to  be  so ; 
never  to  impose  one's  opinion  by  Invasive  force ;  never 
to  be  Impatient,  except,  perhaps  with  dogmatism  and 
intolerance — this  Is  the  essence  of  Intellectual  hos- 
pitality. In  addition  to  this.  If  you  have  that  rare 
disposition  to  make  a  substantial  sacrifice  for  defending 
the  right  to  be  heard,  of  those  whose  opinions  you 
disapprove,  that  would  be  so  rare  a  virtue  as  to  be 
almost  heroic.     If  you  have  this  virtue,  contribute  to 

THE  FREE  SPEECH  LEAGUE. 

56  East  59lh  St.,  New  York  City 


JUDICIAL  DEFINITION 

OF 

FREEDOM  OF  SPEECH 

"TO  SUFFER  THE  CIVIL  MAGISTRATE 
TO  INTRUDE  HIS  POWER  INTO  THE 
FIELD  OF  OPINION,  OR  TO  RESTRAIN 
THE  PROFESSION  OR  PROPAGATION 
OF  PRINCIPLES.  ON  SUPPOSITION  OF 
THEIR  ILL  TENDENCY,  IS  A  DANGEPv^ 
OUS  FALLACY.  WHICH  AT  ONCE  DE^ 
STROYS  ALL  LIBERTY,  BECAUSE  HE, 
BEING  OF  COURSE  JUDGE  OF  THAT 
TENDENCY,  WILL  MAKE  HIS  OPINIONS 
THE  RULE  OF  JUDGMENT,  .AND  AP^ 
PROVE  OK  CONDEMN  THE  SENTL 
MENTS  OF  OTHERS  ONLY  AS  THEY 
SHALL  SQUARE  WITH  OR  DIFFER. 
FROM  HIS  OWN.  IT  IS  TIME  ENOUGH 
FOR  THE  RIGHTFUL  PURPOSE  OF 
CIVIL  GOVERNMENT  FOR  ITS  OFFIC- 
ERS TO  INTERFERE  WHEN  PRINCE 
PLES  BREAK  OUT  INTO  OVERT  ACTS 
AGAINST  PEACE  AND  GOOD  ORDEK." 

Virginia  Legislature.     Approved  in  Reynolds,  vs.  U.  S.,  98  U.  S.  163. 


inviri/cnciTV  r»B 


T  TRT?  ATI  Y 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

405  Hiigard  Avenue,  Los  Angeles,  CA  90024-1388 

Return  this  material  to  the  library 

from  which  it  was  borrowed. 


mBt:^ 


NON-REN 


REC'DBHt-llF|  1^94 
DUpilV 


^f&ftr 


iTE  RECEIVED 


ity  which  dares  not  protect  its 
humblest  and  most  hated  member 
in  the  free  utterance  of  his 
opinions  y  no  matter  how  false  or 
hateful,  is  only  a  gang  of  slaves  ^ 


TOEUBKARY 


LITHOMOUNT 

PAMPHLET  BINDER 


ManufaeluHd  bv 

eAYLORD  BROS.  Inc. 

Syracut*,  N.  Y. 

Stockton,  Calif. 


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Illl 

A    001  001  812    5 


Univeri 

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